Citation Nr: 1342085 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 08-23 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to an initial disability rating greater than 10 percent for service-connected mechanical low back pain with sacroiliac joint dysfunction (hereinafter referred to solely as "low back disability"). 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service from June 2002 to April 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut, which, in pertinent part, granted service connection for a low back disability, assigning an initial evaluation of 10 percent; and denied service connection for a right hip disorder. The Veteran expressed disagreement with the assigned initial evaluation and with the denial of service connection, and perfected a substantive appeal. During the pendency of this appeal, jurisdiction of this matter was transferred to that of the RO in St. Petersburg, Florida. In a February 2009 rating decision, the RO denied the Veteran's claim for a TDIU. In July 2009, the Veteran submitted a timely notice of disagreement, and later in July 2009, she was provided with a Statement of the Case. In the November 2009 Appellant's Brief, the Veteran's representative expressly indicated that the Veteran wished to appeal the February 2009 RO decision as to the denial of a TDIU. This matter was previously before the Board in March 2010 and March 2011, at which time it was remanded for additional development. It is now returned to the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has a right hip disorder that is etiologically related to service or to a service-connected disability, to include presumptively. 2. The evidence of record shows that the Veteran has forward flexion of the thoracolumbar spine to 90 degrees; a combined range of motion of the thoracolumbar spine of 225 degrees; and localized tenderness not resulting in abnormal gait or abnormal spinal contour. 3. From April 19, 2007, to August 6, 2008, the Veteran was service connected for an acquired psychiatric disorder diagnosed as major depressive disorder, anxiety disorder, and PTSD, evaluated as 50 percent disabling; and a low back disability, evaluated as 10 percent disabling; the combined rating was 60 percent. 4. From August 6, 2008, to the present, the Veteran is also service connected for right wrist capsulitis, claimed as a right wrist condition, evaluated as noncompensably disabling; the combined rating remains 60 percent. 5. The Veteran has been unemployed since approximately 2008 when she became a full-time student. 6. The Veteran's service-connected disabilities are not of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disorder have not been met, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for an initial evaluation greater than 10 percent for a low back disability are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 5237 (2013). 3. The criteria for the assignment of a TDIU are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the Veteran's claim for entitlement to service connection for a right hip disorder and low back disability, the Veteran was mailed a letter in August 2007 advising her of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The August letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of her claims. Similarly, prior to the initial adjudication of the Veteran's claim for a TDIU, the Veteran was mailed a letter in June 2008 that substantially complied with the VCAA notice requirements. The Board also finds the Veteran has been afforded adequate assistance in response to her claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file, and VA Medical Center treatment notes and private treatment notes have been obtained. Neither the Veteran nor her representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. VA examinations were provided in September 2007, February 2009, and March 2011, in order to ascertain the severity of the Veteran's right hip disorder and low back disability. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the VA examinations are sufficient. A thorough review of the file was conducted in each instance, and the examinations provided findings relevant to the issue at hand. The Veteran's statements were also considered and discussed. In addition, the VA examiners described the effects of the disorders on the Veteran's ordinary activities of daily life. Further, the Veteran was afforded VA PTSD examinations in August 2007 and February 2009 to address her service-connected disability and employability. The examiners reviewed the claims file and provided thorough mental status examinations. The examiner's conclusions were based on the evidence of record and supported by a sufficient rationale. Therefore, the Board finds that the examinations are adequate to decide the claim for a TDIU. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, the Board will address the merits of the claim. Legal Criteria Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2013); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a); therefore the claimed right hip disorder may be subject to service connection based on continuity of symptomatology assuming that it involves arthritis. Moreover, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Increased initial evaluation Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45 (2013); DeLuca v. Brown, 8 Vet App. 202 (1995). 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2013). When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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 (2013). Mechanical lower back pain with sacroiliac joint dysfunction is rated under the General Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, effective September 26, 2003, 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, the following ratings will apply. A 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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, Diagnostic Codes 5235-5243. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, the entire cervical spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. For the purposes of evaluations under Diagnostic Codes 5235-5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note 1. TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or affecting a single body system are considered one disability for the purpose of reaching the 60 percent single disability or 40 percent disability in combination with others. See 38 C.F.R. § 4.16(a)(2)-(3). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the Veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis Entitlement to service connection for a right hip disorder The Veteran has asserted that she has a right hip disorder that had its onset during active service. According to the Veteran, the right hip disorder stems from a fall that occurred in either 2004 or 2005 while serving on active duty in Japan. A review of the STRs is negative for treatment for or a diagnosis of a right hip disorder while the Veteran was in active service. In December 2006, the Veteran was treated after a fall. In January 2007, the Veteran was diagnosed with a sacroiliac region sprain and dislocation of coccyx. In February 2007, the Veteran was seen to rule out a pelvic fracture. In April 2007, the Veteran was afforded a separation examination. There is no indication from the examination report that the Veteran reported any hip disorder at the time of her separation from active service. The Veteran specifically checked "yes" on the health questionnaire to the questions of whether she had several symptoms, including recurrent back pain. However, the Veteran did not indicate that she had any pain in her hips. There is no indication that the Veteran reported any hip pain as a result of her fall in service. A review of post-service medical records shows that the Veteran has received treatment at the VA Medical Center from July 2007 to November 2008 for a variety of conditions including back and hip pain. In July 2007, the Veteran reported that she had an accidental fall in service that resulted with a broken hip. The Veteran was afforded VA joint examinations for her alleged hip disorder in September 2007 and March 2011. In September 2007, the Veteran reported that she fell in 2003 in active service through a hatch on board a ship after losing her footing. She reported that with the fall she experienced pain in her tailbone or coccyx, but she did not experience right hip pain or problems. The Veteran reported falling again in 2004. She reported experiencing right hip pain after her fall in 2004. She also reported that a March 2007 MRI revealed a previous hip fracture that had already healed. The Veteran reported that she experienced current pain with weakness in her right hip. The examiner noted that she was unable to make any diagnosis or determination regarding the nature and etiology of any current hip disorder because she did not have records or diagnostic results to verify her in-service injury, or the Veteran's post-service MRI results. In March 2011, the Veteran was afforded another VA examination. The examiner reviewed the Veteran's claims file, including her VA treatment notes. The Veteran reported that she began having right hip pain with her fall in service in 2005. She reported that the pain comes and goes but had persisted since her in-service injury. X-rays of the Veteran's right hip showed that the bones and joints about the hip were intact and unremarkable, there were no significant arthritic changes, and there was no abnormal periarticular calcifications present. The examiner diagnosed the Veteran with a hip strain and opined that it was less likely as not caused by, a result of, or aggravated by active duty or her service-connected low back disability. The examiner reasoned that based on a review of the medical records and medical literature, the fall in service did not appear to injure her right hip. The examiner noted a lack of right hip problems or complaints in service and noted that the first report of hip pain was in August 2007, but there was no evidence that this resulted from an injury that occurred during active service. There is persuasive no evidence of record that the Veteran's current right hip disorder is related to her active service. While the Veteran might sincerely believe that her right hip disorder is related to a fall that occurred in active service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current right hip disorder is related to a reported accident that occurred approximately nine years ago falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran has articulated symptoms that have persisted since service, which could serve as "nexus" evidence of continuity of symptomatology. In this regard, the Board notes that the Veteran does not have a chronic disease sufficient to establish service connection based on the continuity of symptomatology. 38 C.F.R. § 3.309(a). The March 2011 VA examination report specifically ruled out arthritis and diagnosed a right hip strain, which is not one of the chronic diseases listed in 38 C.F.R. § 3.309(a). Therefore, entitlement to service connection based on the continuity of symptomatology is not warranted. Further, the March 2011 VA examiner competently opined that it was less likely as not that the Veteran's right hip strain was caused by, the result of, or aggravated by the Veteran's in-service fall, or the Veteran's service-connected low back disability. The VA examiner came to these conclusions after reviewing the claims file in its entirety, pertinent medical literature, and the Veteran's reports of pain since service. Thus, the Board finds the examiner's opinion to be highly probative. Therefore, entitlement to service connection on a secondary basis is not warranted. In sum, there is no evidence of record that the Veteran had a chronic right hip disorder in service. The evidence of record shows that the Veteran was diagnosed with a right hip strain sometime after separation from active service. The Veteran has provided no evidence relating her current right hip disorder to her active service. Further, the March 2011 VA examiner competently opined that the Veteran's current right hip disorder is less likely as not related to her active service, or caused by or aggravated by her service-connected low back disorder. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right hip disorder is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [Continued on Next Page] Increased initial evaluation In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In September 2007 the Veteran was afforded a VA spine examination. The Veteran reported that after a fall that occurred in-service in 2004 she felt pain in her lower back with tingling down both legs. The Veteran described the pain as constant, throbbing, and with occasional flare-ups. The Veteran's flare-ups occurred after sitting or standing in one spot for too long. The Veteran reported that during a flare-up she would be unable to pick things up. The Veteran also reported difficulty carrying heavy items. Upon physical examination, the Veteran's thoracolumbar spine range of motion measurements were forward flexion to 60 degrees with no pain, extension to 30 degrees with no pain, right lateral flexion to 20 degrees with pain in the lower back, left lateral flexion to 30 degrees with no pain, and lateral rotation to 30 degrees bilaterally with no pain. The examiner noted that the Veteran was additionally limited upon repetition due to pain. The examiner noted that the Veteran ambulated well, and had a steady gait and quick pace with her head slightly forward and a symmetrical arm swing. No spinal or paraspinal tenderness was noted. No fatigue, weakness, lack of endurance, or incoordination was noted. The examiner noted scoliosis of approximately 20 degrees at the L1 area. However, the examiner noted that there was no muscle spasm, or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as reversed lordosis or abnormal kyphosis. The examiner noted that it was difficult to make a diagnosis without records and diagnostic results to verify the actual injury aboard the ship. In a December 2007 rating decision the Veteran was granted entitlement to service connection for mechanical low back pain with sacroiliac joint dysfunction with an initial evaluation of 10 percent effective April 19, 2007. In March 2011, the Veteran was afforded another VA spine examination. The Veteran reported severe flare-ups that occurred every two to three weeks and lasted one to two days. During the flare-ups the Veteran reported moderate to severe increase in limitation of motion from pain, but that she was still able to function with most activities, especially school. The Veteran reported that she did not have fatigue or weakness, but that she did have decreased motion, stiffness, spasm, and constant aching and sharp pain in her lower back. Upon physical examination, the Veteran's thoracolumbar spine range of motion measurements were flexion to 90 degrees, extension to 25 degrees, left lateral flexion to 20 degrees, right lateral flexion to 30 degrees, and lateral rotation to 30 degrees bilaterally. There was no objective evidence of pain on active range of motion, and no additional limitations or pain after three repetitions of range of motion. The examiner noted that there was no scoliosis, reversed lordosis, kyphosis, or thoracolumbar spine ankylosis. No fatigue, weakness or incoordination was noted. The examiner also noted that there was not objective pain with motion of the thoracolumbar sacrospinalis. The examiner noted tenderness. The examiner also noted that there was no evidence of intervertebral disc syndrome. Further, the examiner noted that there were no incapacitating episodes. The Veteran's sensory examination, detailed motor examination, and detailed reflex examination were normal. The examiner diagnosed lumbar strain with no evidence of intervertebral disc syndrome. The examiner noted that the Veteran's disability did not affect her usual daily activities. The Veteran reported that the pain made it more difficult to complete school requirements due to decreased concentration. The record shows that the Veteran has received treatment for various disabilities at a VA Medical Center, including back pain. However, there is no indication from the treatment notes of record that the Veteran has limitation of motion in excess of that reported at her VA examinations. The Board has considered the aforementioned evidence and concludes that the Veteran's symptoms do not warrant an initial evaluation greater than 10 percent for her low back disability. In this regard, there is no evidence of record indicating that the Veteran has forward flexion of the thoracolumbar spine that is limited to 60 degrees or less; that she has combined range of motion of the thoracolumbar spine limited to 120 degrees or less; or that there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In fact, the Veteran's forward flexion of the thoracolumbar spine is limited to, at worst, 90 degrees, and her combined range of motion of the thoracolumbar spine is limited to 225 degrees. Additionally, the March 2011 VA examiner specifically said that the Veteran's gait was normal, there were no spasms present, there was no guarding, and there was no abnormal curvature of the spine. While the September 2007 VA examiner noted scoliosis, she also noted that it was not the result of muscle spasms or severe guarding. Further, scoliosis was not noted on the March 2011 VA examination report. Additionally, while the Veteran has reported that she experiences painful flare-ups every two to three weeks that last one to two days, there is no indication that the Veteran experiences functional impairment in excess of that reported in the VA examination report during a painful flare-up. These symptoms have been more or less consistent throughout the entire period on appeal. Therefore a higher evaluation is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board notes that the additional limitation the Veteran experiences due to pain on repetition was accounted for by the VA examiner when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45. There is no evidence showing that the Veteran has more limitation of motion then that found at her VA examination, to include during her reported painful flare-ups. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for the functional impairment of the Veteran's low back. Consideration has been given to assigning a rating under Diagnostic Code 5243, based on incapacitating episodes rather than limitation of motion. However, the threshold question of whether the Veteran has intervertebral disc syndrome has not been satisfied. The March 2011 VA examiner specifically noted that there was no evidence of intervertebral disc syndrome. Therefore, a rating based on incapacitating episodes is not warranted at this time, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a. The Board has also considered whether a separate compensable rating for neurological impairment in either lower extremity is warranted. However, the Veteran's neurological findings at her VA examinations were normal, and there is no other evidence of neurological impairment due to the disability. Therefore, the Board finds that a separate evaluation for neurological impairment in either lower extremity is not warranted for any portion of the rating period on appeal. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. The Veteran's service-connected low back disorder is manifested by symptoms such as pain and reduced range of motion. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The General Rating Formula for Diseases and Injuries of the Spine provides an evaluation based on reduced range of motion, pain, and muscle spasm or severe guarding. The Veteran does not complain of any additional impairment caused by her service-connected low back disability. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluation. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned beyond the currently assigned evaluation. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. 38 C.F.R. § 3.321(b)(1). Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased initial evaluation for a low back disorder and the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Veteran claims that she is unemployable as a result of her service-connected disabilities, specifically her PTSD. Therefore, she believes that a TDIU is warranted. The Veteran is service connected for an acquired psychiatric disorder diagnosed as major depressive disorder, anxiety disorder and PTSD due to personal assault, evaluated as 50 percent disabling; a low back disorder, evaluated as 10 percent disabling; and as of August 6, 2008, right wrist capsulitis, evaluated as noncompensable. The Veteran's combined rating is 60 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2013); see also 38 C.F.R. § 4.26 (2013). The Veteran has a single disability rating of 50 percent for an acquired psychiatric disorder, but the Veteran does not have a combined rating of 70 percent or more. Additionally, the Veteran's disabilities do not meet the criteria under 38 C.F.R. § 4.16(a) for being considered a single 60 percent disability. Therefore, her service-connected disabilities do not meet the percentage rating standards for a schedular TDIU. See 38 C.F.R. § 4.16(a). Nonetheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b). See also Bowling, 15 Vet. App. at 6. For a Veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In her March 2008 statement the Veteran claimed she was unable to work because of her PTSD. However, the Veteran never responded to the VA's request for a Form 21-8940 that would have detailed the Veteran's employment history. The Board notes that while the VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining putative evidence); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In her September 2007 VA spine examination, the Veteran reported being unemployed, but she stated that she felt she was employable. In her February 2009 VA PTSD examination, the Veteran reported being unemployed because she was a full-time student studying to eventually become a registered nurse. At the time, she was attaining a 3.7 grade point average. She also reported in the February 2009 examination that her current unemployment was not due to her mental disorder's effects. However, the Veteran reported that her excessive sleeping was interfering with her productivity and that she was not able to retain information well that she had studied. The VA examiner concluded that her acquired psychiatric disorder was manifested by reduced reliability and productivity due to PTSD symptoms, because she was still able to maintain a high GPA. In her March 2011 VA spine examination, the Veteran again reported that she was not currently employed because she was a full-time student. She reported that at times her pain made it more difficult to complete school requirements in part due to decreased concentration. The examiner reported that her service-connected back disability did not have an effect on usual daily activities. VA treatment records do not indicate that the Veteran would be prevented from maintaining any substantially gainful employment. In addition to the medical evidence, the Veteran has submitted personal statements reiterating her limitations, as reflected in the medical evidence. However, the Veteran does not suggest that she is unable to engage in employment with the appropriate accommodations for her physical and social limitations. While the Board does not doubt that the Veteran's service-connected disabilities have some effect on her employability, as evidenced by her 60 percent combined rating, the weight of the evidence does not support her contention that her service-connected disabilities are of such severity so as to preclude her participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated by the currently assigned 60 percent combined rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2013). Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The only evidence in this case in support of the grant of a TDIU is the Veteran's own contentions. While she is competent to discuss the symptoms of her service-connected disabilities and her perception of their effect on her unemployment, her assertions are outweighed by the conclusions of the relevant VA examiners. The examiners based their conclusions on a review of medical records, the Veteran's reported history, and a contemporaneous physical examination. The Board reiterates that the Veteran did not meet the percentage requirements for a TDIU on a schedular basis. Moreover, as there is no evidence to support a finding that her disabilities are outside the norm, the Board finds that referral for extra-schedular consideration is not warranted. Van Hoose, 4 Vet. App. 361. In view of the Veteran's education and work history, which in the Board's estimation is sufficient for meeting the requirements of many jobs, the Board reiterates that referral for extra-schedular consideration is not warranted in this case. Accordingly, a basis for a grant of a TDIU on a schedular or extra-schedular basis has not been presented at any point during the appeals period. Thus, the Board finds that the evidence does not demonstrate that the Veteran is unemployable due to her service-connected disabilities. As such, the preponderance of the evidence is against the Veteran, and the claim for a TDIU must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the Veteran's current right hip disorder is denied. An initial evaluation greater than 10 percent for the Veteran's service-connected low back disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs