Citation Nr: 1407375 Decision Date: 02/20/14 Archive Date: 03/04/14 DOCKET NO. 09-21 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for a left (major) arm disability. 2. Entitlement to an initial disability rating in excess of 20 percent prior to April 8, 2013, and as of June 1, 2013, for a low back disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from June 1962 to June 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and July 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012. A transcript of that hearing is of record. An August 2013 rating decision granted a temporary total disability rating for convalescence following a surgical procedure for the service-connected low back disability. Therefore, the Board has limited its consideration accordingly. This case was previously before the Board in July 2013, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's left (major) arm disability is manifested by symptoms of pain, weakness, and numbness that are moderate in severity. 2. For both periods on appeal, the Veteran's low back disability has been manifested by degenerative disc disease of the lumbar spine; limitation of flexion to, at worst, 30 degrees; tenderness to palpation; spasms and guarding severe enough to result in an abnormal gait; and pain on motion; and is not productive of ankylosis of the thoracolumbar spine or incapacitating episodes requiring medically prescribed bed rest. 3. The Veteran's combined disability rating, to include bilateral factor, is 80 percent with at least one disability rated 40 percent, and the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for a left (major) arm disability have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8513, 8613, 8713 (2013). 2. The criteria for an initial disability rating of 40 percent, but not higher, prior to April 8, 2013, and as of June 1, 2013, for a low back disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2013). 3. The criteria for TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA must 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed letters in November 2007 and April 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The November 2007 and April 2008 letters also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claims. The Board finds the Veteran has been provided adequate assistance in response to his claims. The Veteran's service medical records are of record. VA and private treatment records have been obtained. The Veteran has been provided appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any outstanding evidence. 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain 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. 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 (2013). 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). The Veteran's left arm disability is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2013), pertaining to paralysis of the radicular group nerves. Under that diagnostic code, a 40 percent disability rating is warranted for moderate symptoms of radicular nerve group incomplete paralysis in the major extremity, a 70 percent disability rating is warranted for severe symptoms of radicular nerve group incomplete paralysis in the major extremity, and a 90 percent disability rating is warranted for complete paralysis of the radicular nerve groups. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2013). Intervertebral disc syndrome is rated under the general formula for rating diseases and injuries of the spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). 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; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). 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 (2013). 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 (2013). A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (2013). Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2013). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a) (2013). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for a TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and asks for a TDIU because of subjective factors that the objective rating does not consider. Vittese v. Brown, 7 Vet. App. 31 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board finds nothing in the record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Left (Major) Arm Disability At an October 2007 VA examination, the Veteran reported that he experienced sensation changes along the ulnar nerve distribution in his left arm. He reported that his symptoms had gotten progressively worse over the years. The Veteran reported that he took Motrin a few times a day for relief of his symptoms and experienced fair relief of his symptoms. Specifically, the Veteran reported that his coordination was impaired by weakness and numbness in his left forearm and the 4th and 5th fingers of his left hand. Upon physical examination, the Veteran was noted to be left handed. Upon motor examination, the Veteran had mild weakness in the left arm with slightly decreased grip. There was no muscle wasting or muscle loss in the left arm. The examiner noted that it appeared that the ulnar nerve was impaired. Upon sensory examination, there was decreased sensation to pain, light touch, and position sense. Upon detailed reflex examination, the Veteran had decreased reflexes in the left bicep, the left tricep, and the left brachioradialis. There was no atrophy; abnormal muscle tone or bulk; tremors, tics, or other abnormal movements; or gait or balance abnormality. There was no impaired joint function as a result of the nerve disorder. The examiner diagnosed left arm ulnar neuropathy, moderate in severity. The examiner noted that the main effect of the disability was left arm numbness. The examiner noted that the Veteran's left arm disability would have a mild effect on the Veteran's ability to travel and a moderate effect on his ability to do chores, participate in recreational activities, feed himself, bathe himself, dress himself, his ability to toilet, and his ability to groom himself. The examiner noted that the Veteran's left arm disability would have a severe effect on his ability to do chores and that it would totally prevent him from exercising and playing sports. The examiner further noted that the Veteran was forced to rely on his right arm to do most of the work required of his left arm. At a May 2011 VA examination, the Veteran reported that his symptoms were chronic and had continued to increase in severity over time. He reported that he continued to experienced increased pain and weakness in his left arm and that the pain would awaken him at night. He reported that he took Ibuprofen for pain, but received very little relief from his symptoms. Upon physical examination, the Veteran's left bicep, tricep, and brachioradialis reflexes were hypoactive. The Veteran did not have any left arm sensory deficits. Upon detailed motor examination, the Veteran had normal findings in left elbow flexion and extension, left wrist flexion and extension, left finger flexion and abduction, and left thumb opposition. There was no gait abnormality, imbalance or tremor, fasciculation, or limited joint function. At a July 2013 VA examination, the Veteran reported that he continued to experience pain near the left mid-trapezius that went down his left arm. He reported that he experienced numbness in the left ring and small fingers and that he experienced a needle sensation down his left arm after awakening in the morning. The Veteran reported that he also experienced decreased left hand grip strength. The Veteran reported that his left arm pain was chronic and moderate in intensity. He reported that he experienced left arm paresthesia that was moderate in intensity. The Veteran reported that his left arm numbness was also moderate in intensity. Upon physical examination, the Veteran was found to have normal left arm muscle strength, but exhibited some decreased grip and pinch strength on his left. There was no evidence of muscle atrophy. Deep tendon reflexes were hypoactive in the biceps, triceps, and brachioradialis. Upon sensory examination, the Veteran had decreased light touch sensation in the left inner/outer forearm and in the left hands and fingers. The examiner diagnosed left arm numbness and radicular pain; probable thoracic outlet syndrome versus cervical radiculopathy; and moderate left ulnar nerve neuropathy. The examiner noted that there was incomplete paralysis of the left ulnar nerve and that the incomplete paralysis was moderate in severity. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities, to include his left arm disability. On the occasions that he Veteran received treatment for his low back disability, he reported symptoms of pain, weakness, and numbness in his left arm and was noted to have trouble lifting things as a result of his symptoms. He has also been noted to, at times, have decreased range of motion in his left arm as a result of his pain; decreased grip strength; inability to make tight fists; and tiring against resistance. Additionally, a review of the private treatment notes of record fails to show that the Veteran experiences symptoms that are worse than those described in the VA examination reports and the VA Medical Center treatment notes of record. The Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his left (major) arm disability. The symptoms described in the various examination reports and treatment notes of record do not show that the Veteran experiences symptoms that are worse than moderate in nature. The various VA examiners who have examined the Veteran have consistently indicated that the Veteran's symptoms were moderate in intensity. He had some decreased sensation, but his detailed motor examinations have been normal. While he did have some deep tendon reflex deficits, they were not absent entirely. Additionally, the Veteran does not appear to be taking any prescribed medication for his symptoms, but rather, he treats himself with over-the-counter medication. Further, while the Veteran's left arm disability was noted to prevent him from exercising and playing sports and was noted to have a severe effect on his ability to do chores, it was only noted to cause mild or moderate impairment in all other aspects of his activities of daily living. Furthermore, there was no muscle atrophy shown. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that a higher disability rating for the Veteran's left arm disability is not warranted. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2013). Low Back Disability At an October 2007 VA examination, the Veteran reported that he experienced back pain with radiation into both legs, right worse than the left. He reported that he had daily, constant back pain that was alternately sharp and dull in nature and that it was moderate to severe in intensity. He reported that the radiating pain was sharp in nature and was, on occasion, shooting. The Veteran reported that he experienced painful flare-ups, the frequency and extent of which was not noted, but it was noted that the Veteran treated his flare-ups with Motrin. He also reported that the flare-ups were caused by activity. The Veteran denied weight loss, fever, bowel dysfunction, and bladder dysfunction. The Veteran did not use assistive devices. The Veteran reported that he was able to sit for one half hour to one hour at a time and was able to stand for about 10 minutes at a time. However, the Veteran was unable to state whether he experienced any limitations in walking as a result of his low back disability. The Veteran denied experiencing any falls, but reported that he spent most of his time lying in bed or on the couch because of his back pain. Upon physical examination, there was no evidence of spasms or atrophy. There was evidence of guarding, pain with motion, tenderness to palpation, and weakness. The Veteran's posture and head position were normal and symmetrical in appearance. The Veteran's gait was antalgic with poor propulsion. There was no abnormal curvature of the spine. Lasegue's sign was positive on the right. Thoracolumbar spine range of motion measurements were flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 25 degrees each. Additional functional limitation following repetition was noted. The examiner noted that pain began at 30 degrees of flexion following two additional forward flexion exercises. The examiner noted that the Veteran exhibited moderate to severe pain, moderate to severe weakness and fatigue, but did not have any incoordination. The Veteran experienced moderate difficulty and moderate pain with all ranges of motion. Deep tendon reflexes were decreased, but pulses and sensation were both intact in both lower extremities except over the lateral aspect of the right leg. No muscle loss or wasting was noted. The examiner diagnosed mechanical low back strain and disc disease and radiculopathy in both legs. The examiner noted that the major functional impact caused by the Veteran's low back disability included pain with repetitive use. The examiner noted that he could not determine additional limitation following repetitive use during a flare-up, as that would require him to resort to speculation. At a July 2013 VA examination, the Veteran reported that he experienced painful flare-ups following prolonged sitting or walking and that he used Motrin for treatment when his back was really sore. The Veteran reported mild to moderate symptoms of radiculopathy in both legs. The Veteran denied bowel and bladder dysfunction. The Veteran reported that he regularly used a cane for assistance with ambulation. Thoracolumbar spine range of motion measurements were flexion to 50 degrees, with pain at 40 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees each, with pain at 15 degrees; and right and left lateral rotation to 20 degrees each, with pain at 15 degrees. There was no additional range of motion limitation following repetition. However, the examiner noted that the Veteran experienced additional functional impairment in the form of less movement than normal and pain on movement. The examiner noted that the Veteran had thoracolumbar spine guarding or muscle spasm that was severe enough to result in an abnormal gait. Muscle strength testing was normal in all aspects and there was no evidence of atrophy. Deep tendon reflexes were hypoactive. Upon sensory examination, the Veteran had decreased sensation in the lower leg/ankle and in the foot/toes in each lower extremity. The Veteran was unable to perform straight leg raising testing. The examiner noted the Veteran's right leg radiculopathy was mild and his left leg radiculopathy was moderate. The examiner reported that the Veteran did not have intervertebral disc syndrome. The examiner diagnosed degenerative disc disease (DDD) L4-S2, bilateral lower extremity radiculopathy, and status post lumbar laminectomy L5-S1. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities, to include sporadic visits for complaints low back pain and lower extremity radiculopathy. However, there is no indication from the VA Medical Center treatment notes of record that his low back disability is worse than that shown at his VA examinations or that he has experienced any incapacitating episodes as a result of his low back disability. A review of the records also shows that the Veteran has received treatment from private providers for his low back disability. Specifically, there are magnetic resonance imaging scan (MRI) reports confirming the Veteran's various low back disability diagnoses and records which show that the Veteran underwent a lateral discectomy surgical procedure in April 2013. However, there is no indication from the private treatment notes of record that the Veteran's low back disability is worse than that shown at his VA examinations and aside from the convalescence required for his April 2013 surgery, there is no indication that he has experienced incapacitating episodes as a result of his low back disability. The Board finds that the Veteran is entitled to a 40 percent rating for a low back disability for both periods on appeal. At the October 2007 VA examination, the Veteran was noted to have forward flexion to 30 degrees following only two repetitions of motion. The Veteran was unable to complete further repetitions as a result of pain. Further, the examiner specifically reported that the Veteran experienced moderate to severe pain, weakness, and fatigability. While the Board acknowledges that the Veteran had forward flexion to 40 degrees at his July 2013 VA examination, the examiner also noted that the Veteran experienced additional functional impairment following repetition in the form of less movement than normal and pain on movement, although that additional loss of motion was not quantified. However, the Board finds that with the additional loss of motion, the Veteran's symptomatology would most likely more nearly approximate the criteria for a 40 percent rating. Therefore, the Board finds that the symptoms of the Veteran's low back disability have more closely approximated those contemplated by the 40 percent disability rating for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). Consideration has been given to assigning a higher disability rating for both periods on appeal. However, there is no indication from the record that the Veteran has ankylosis of the thoracolumbar spine, or the entire spine. The Board notes that the additional limitations the Veteran experiences due to pain, weakness, and fatigability were accounted for by the VA examiners and have been considered by the Board. 38 C.F.R. § 4.40, 4.45 (2013). There is no other evidence showing that the Veteran has more limitation of motion than that found at his VA examinations. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 40 percent for the functional impairment of the Veteran's low back. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). Consideration has been given to assigning a rating under Diagnostic Code 5243, based on incapacitating episodes. However, while the Veteran has been diagnosed with degenerative disc disease, there is no evidence of record indicating that the Veteran experiences incapacitating episodes which require medically prescribed bed rest. Therefore, a rating based on incapacitating episodes is not warranted. 38 C.F.R. § 4.71a (2013). The Board notes that the Veteran is in receipt of separate disability ratings for neurological impairment of both lower extremities. The disability ratings assigned for those disabilities are not currently before the Board. Therefore, the Board will not address the Veteran's neurological impairment in this decision. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Resolving reasonable doubt, the Board finds that a 40 percent rating is warranted for the low back disability for the period on appeal, but the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular Consideration 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). The record shows that the manifestations of the disabilities on appeal are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the disabilities would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization beyond that envisioned by the currently assigned ratings, to include the increase granted herein. The Board acknowledges that there is some indication from the record that the Veteran is unable to work as a result of his service-connected disabilities in combination. However, the issue of entitlement to a TDIU has been addressed as a separate issue in this appeal. Further, there is no indication that either the Veteran's left arm disability or low back disability by themselves cause a marked interference with employment beyond that contemplated by the currently assigned ratings. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not warranted. TDIU The Veteran has asserted that he is unable to work as a result of his service connected disabilities. Specifically, the Veteran has reported that his various service-connected disabilities make it difficult to sit or stand for long periods and make it difficult for him to lift objects. Service connection is in effect for a left arm disability, rated 40 percent; a low back disability, now rated 40 percent; a right arm disability, rated 20 percent; tinnitus, rated 10 percent; a left leg disability, rated 10 percent; a right leg disability, rated 10 percent; and bilateral hearing loss disability, rated 0 percent. The Veteran's combined disability rating, to include bilateral factor, is 80 percent. Therefore, the Veteran meets the schedular criteria for consideration for a TDIU. 38 C.F.R. § 4.16(a) (2013). In his claim for TDIU, the Veteran reported that he had a college education. He reported that he had previously worked as a public school teacher for approximately 28 years and then opened his own construction business. The Veteran reported that he became too disabled to work in 2002 as a result of his service-connected disabilities, at which time he stopped teaching. The Veteran has since reported that even though he opened his own construction business, the bulk of the work fell to his wife as he has been unable to perform the duties himself. He has reported that he himself only performs occasional light office work, but nothing on a regular schedule or basis. In August 2009, the Veteran submitted a private occupation assessment report. In that report, it was noted that the Veteran was only able to sit or stand for less than one hour at a time. Further, it was noted that the Veteran was unable to stand or walk for longer than one hour in an entire eight hour workday and that he was unable to sit for longer than a total of four hours in an entire eight hour workday. It was noted that the Veteran could occasionally carry objects weighing up to five pounds, but that he was unable to carry any objects weighing in excess of five pounds. The Veteran was noted to only be able to use his hands for pushing and pulling on an occasional basis. He was noted to be unable to perform bending, squatting, or crawling; and was noted to only occasionally be able to perform climbing and reaching. It was noted that the Veteran was totally restricted from performing activities involving unprotected heights, that he was moderately restricted in performing activities which involved being around moving machinery and that he was mildly restricted in driving automotive equipment. The Veteran was noted to be additionally limited in his activities as a result of his pain and that the pain had a severe effect on his ability to function. The limitations described were noted to be the result of a medically-determinable impairment, which was noted to be the Veteran's low back DDD and arthritis. As a result of the various limitations noted, the examiner made a finding that the Veteran was unable to sustain any work-related activities on a predictable basis and had been unable to do so since 2002. The July 2013 VA peripheral nerves examiner also provided an opinion regarding the Veteran's employability. That examiner opined that the Veteran was capable of sedentary work. The examiner noted that the Veteran was well groomed and dressed and he did not appear to have any major problems performing activities of daily living. The examiner noted that the Veteran was still able to drive a car and was able to converse well during normal conversation. Additionally, the examiner noted that the Veteran's cognition appeared to be well intact. The Board finds the July 2013 opinion inadequate on the issue of determining entitlement to TDIU. The examiner did not provide a list of the Veteran's functional limitations and does not appear to have considered the Veteran's extensive list of limitations due to other service-connected disabilities when making the determination that the Veteran would be able to perform sedentary employment. Sedentary employment, by its name, is sedentary and would require sitting for extended periods. The Veteran has consistently reported that he is unable to sit for an extended period of time without experiencing a painful flare-up of his low back disability. Further, the examiner did not describe any sort of employment, beyond the general classification of sedentary, in which the Veteran could work considering his education and occupational background. Therefore, the July 2013 opinion cannot serve as the basis of a denial of entitlement to compensation benefits. The Veteran has competently described his functional impairment in conjunction with his ability to work. Further, the Veteran has submitted a private occupational assessment report in which it was indicated that the Veteran was unable to sustain any work-related activities on a predictable basis, and had been unable to do so since 2002, as a result of his low back disability. That opinion and the Veteran's credible testimony are more persuasive than any other evidence of record. In light of the Veteran's occupational background and the functional limitations, the Board finds that the Veteran's various service-connected disabilities to render him unable to obtain and maintain substantially gainful employment in accordance with his background and education level. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 40 percent for a left arm disability is denied. Entitlement to a disability rating of 40 percent, but not higher, prior to April 8, 2013, and as of June 1, 2013, for a low back disability is granted. Entitlement to TDIU is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs