Citation Nr: 1450412 Decision Date: 11/13/14 Archive Date: 11/26/14 DOCKET NO. 03-01 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent from July 16, 1999 through March 7, 2010, and in excess of 40 percent thereafter, for the orthopedic manifestations of a low back disability. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had active service from November 1994 to July 1999. This matter arises before the Board of Veterans' Appeals (Board) from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction currently resides in Winston-Salem, North Carolina. This matter was initially before the Board in December 2004 and was remanded for additional evidentiary development. In a February 2006 decision, the Board denied entitlement to an initial rating in excess of 20 percent for lumbosacral strain. In a May 2008 Memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's February 2006 decision, and remanding the claim for readjudication. In October 2008, the Board remanded the matter for additional evidentiary development. In an April 2010 rating decision, the RO granted an increased rating of 40 percent for the Veteran's low back disability, now classified as mild degenerative disc disease and facet arthrosis at L5/S1 with annular bulge, effective March 8, 2010. The April 2010 rating decision also assigned separate 10 percent ratings for lumbar radiculopathy of the right and left lower extremities, effective September 23, 2002. As the Veteran has not expressed disagreement with the assigned disability evaluation for lumbar radiculopathy to the right and left lower extremities, these matters are not before the Board and will not be discussed. In June 2010, the Board again denied entitlement to an initial rating in excess of 20 percent for the Veteran's low back disability prior to March 8, 2010. The Board also denied entitlement to a rating in excess of 40 percent for his low back disability beginning March 8, 2010. In March 2011, the Court issued an Order vacating the June 2010 decision and remanding it for further development and adjudication consistent with a March 2011 Joint Motion for Remand. In November 2011, the Board again remanded the claims for additional evidentiary development. These matters have now been returned to the Board for appellate review. FINDINGS OF FACT 1. Prior to September 23, 2002, the Veteran's low back disability was manifested by evidence of severe recurring attacks with intermittent relief under the schedular provisions in effect at the time. Orthopedic and neurologic symptoms are considered under this Code. 2. As of September 23, 2002 separate ratings were assigned for orthopedic manifestations of the spinal disorder, and radiculopathy of each lower extremity that combined to a 40 percent rating. 3. Beginning March 8, 2010, the Veteran's low back disability was not manifested by evidence of unfavorable ankylosis of the entire thoracolumbar spine. 4. The Director of Compensation and Pension Service issued a denial of extraschedular consideration for the Veteran's service-connected low back disability. 5. The Veteran is service connected for a low back disability evaluated as 40 percent disabling from June 16, 1999, 20 percent disabling from September 23, 2002, and 40 percent disabling from March 8, 2010; a right knee disability evaluated as noncompensable from July 16, 1999 and 10 percent disabling from April 29, 2002; a left knee disability evaluated as noncompensable from July 16, 1999 and 10 percent disabling from April 29, 2002; radiculopathy to the right lower extremity evaluated as 10 percent disabling from September 23, 2002; radiculopathy to the left lower extremity evaluated as 10 percent disabling from September 23, 2002; a scar on the right index finger evaluated as noncompensable from July 16, 1999; an inguinal hernia evaluated as noncompensable from July 15, 1999; and erectile dysfunction evaluated as noncompensable from September 25, 2013. 6. The Veteran does not meet the schedular requirements for TDIU and the Director of Compensation and Pension Service issued a denial of extraschedular consideration for TDIU. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for a disability evaluation of 40 percent, and no higher, for a low back disability are met from July 16, 1999 through September 22, 2002, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.71a, Diagnostic Code 5293 (1999). 2. From September 23, 2002, to March 8, 2010, the criteria for a rating in excess of 20 percent for the orthopedic manifestations of the low back disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.71a, Diagnostic Code 5242 (2014). 3. Beginning March 8, 2010, the criteria for a disability evaluation in excess of 40 percent for a low back disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.71a, Diagnostic Code 5242 (2014). 3. The issue of extraschedular consideration has been denied by the Director of Compensation and Pension Service and is no longer before the Board. 38 C.F.R. § 3.321(b) (2014); see e.g. McTighe v. Brown, 7 Vet. App. 29 (1994); Hudgens v. Gibson, 26 Vet. App 558 (2014). 4. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.341, 4.15, 4.16, 4.25, 4.26 (2014). 5. The issue of extraschedular consideration for TDIU has been denied by the Director of Compensation and Pension Service and is no longer before the Board. 38 C.F.R. § 4.16(b) (2014); see e.g. McTighe v. Brown, 7 Vet. App. 29 (1994); Hudgens v. Gibson, 26 Vet. App 558 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January 2005 and November 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The claimant has been notified of the need for medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009). The case was most recently adjudicated in an October 2013 Supplemental Statement of the Case. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him multiple VA examinations during the appeal period. The examiners provided sufficient detail for the Board to make a decision and, when taken as a whole, the reports are deemed adequate with respect to these claims. Additionally, the matter was referred to the Director of Compensation and Pension Service for extraschedular consideration and was denied in an April 2013 response. The Board considers the decision of the Director of Compensation and Pension Service to be a final determination; thus, the issue of extraschedular consideration will not be discussed further. The decision of the Director is deemed to be a policy determination of an individual to whom the Agency authority is given, and not a legal/factual matter subject to Board review. See e.g. McTighe v. Brown, 7 Vet. App. 29 (1994); Hudgens v. Gibson, 26 Vet. App 558 (2014). Accordingly, the Board finds there has been substantial compliance with the November 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Increased Rating Claim Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally, Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Furthermore, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999) (concerning the staging of initial ratings). When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Rating Schedule for the Spine As noted above, the Veteran' claim for an increased rating for his low back disability has been pending since 1999. During the pendency of the Veteran's appeal, the criteria for rating spine disabilities were amended twice. Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome (IVDS). 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). At that time, VA also reiterated the changes to Diagnostic Code 5293 (now reclassified as Diagnostic Code 5243) for IVDS. The VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. The VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. Rating Schedule for the Spine Prior to September 23, 2002 At the time service connection was granted for a lumbosacral strain, the only potentially applicable Diagnostic Codes under ratings for the spine were 5292, 5293 and 5295. Diagnostic Codes 5285, 5286, and 5289 were not applicable as the Veteran did not have residuals of a vertebral fracture or any evidence of ankylosis. Under the former Diagnostic Code 5292, a 10 percent evaluation was provided for slight limitation of motion of the lumbar spine, a 20 percent evaluation for moderate limitation of motion of the lumbar spine, and a 40 percent evaluation for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). The words "moderate" and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Prior to September 23, 2002, Diagnostic Code 5293 provided a 10 percent evaluation for mild IVDS; a 20 percent evaluation for IVDS when moderate with recurring attacks; a 40 percent evaluation for IVDS that is severe with recurring attacks and intermittent relief ; and a 60 percent evaluation for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. See 38 C.F.R. § 4.71, Diagnostic Code 5293 (1999). Additionally, the former Diagnostic Code 5295 provided a 10 percent evaluation for lumbosacral strain with characteristic pain on motion; a 20 percent evaluation for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; and a maximum evaluation of 40 percent for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Rating Schedule for the Spine Beginning September 23, 2002 Effective September 23, 2002, IVDS is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating, the highest available, is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). Note (1) to this provision provides that for purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. Note (2) to this provision provides that when evaluating on the basis of chronic manifestations, orthopedic disabilities are to be evaluated using the criteria for the most appropriate orthopedic diagnostic code(s). Neurologic disabilities are to be evaluated separately using the evaluation criteria for the most appropriate neurologic diagnostic code(s). Note (3) provides that if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Rating Schedule for the Spine Beginning September 26, 2003 Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a 40 to 100 percent evaluation for unfavorable ankylosis of the spine. Diagnostic Code 5243 provides that IVDS (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The incapacitating episode rating scheme set forth in Diagnostic Code 5243 is nearly the same as that utilized in the 2002 version of Diagnostic Code 5293. Under the General Rating Formula for diseases and injuries of the spine, evaluations are assigned as follows: A 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; A 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) to the rating formula specifies that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Evaluation of Low Back Disability Prior to March 8, 2010 Prior to March 8, 2010, the Veterans low back disability received an initial disability rating of 20 percent under Diagnostic Code 5295-5003. 38 C.F.R. § 4.71a (1999). The Veteran attended a VA spine examination in August 1999. During this examination, a range of motion testing revealed flexion limited to 75 degrees, extension limited to 30 degrees and lateral flexion limited to 35 degrees, bilaterally. The examiner noted that range of motion was normal for the lumbosacral spine. There was evidence of some pain on palpation. There was no evidence of bony or soft tissue abnormalities, muscle spasm, or fasciculation of lumbosacral paraspinal muscles. In May 1999, a lumbar spine MRI indicated evidence consistent with degenerative disc disease. At a November 1999 private spine examination at Hughston Clinic, the examiner noted the Veteran's backward bending was more painful than his forward bending, but fuller. An MRI showed changes consistent with degenerative disc disease. In an April 2002 statement, the Veteran asserted he was unable to work as an Equipment Operator due to a recent automobile accident and his pre-existing health conditions. In a May 2002 private treatment note, Dr. C.J.N. indicated the Veteran reported a history of pain radiating from his neck down to his low back and lower extremities. X-rays at the time did not reveal any fractures, but a curvature of spine was noted. The Veteran denied bowel or bladder problems, reported a history of low back pain that increased significantly after the automobile accident, and mentioned he was unable to work due to pain. A physical examination revealed a significant reduction in range of motion of the lumbar spine, with pain and additional evidence of pain on palpation. There was a positive straight leg test bilaterally. An MRI of the lumbar spine revealed degenerative disc disease with a disc bulge that created lateral recess narrowing. The private physician diagnosed him with intervertebral disc disorder, and degenerative disc disease of the lumbar spine. VA treatment records show the Veteran complained of worsening back pain, and denied trauma, or bowel/bladder incontinence. He also had an epidural injection. In June 2002, a VA radiology report of the lumbar spine was unremarkable. The Veteran again complained of worsening back symptoms, stating his back had been "giving out" a couple times a month for the last 3 months. During each episode, he reported being unable to walk or lift with his arms. He described the pain as radiating, and denied numbness or tingling. The Veteran attended another VA examination in July 2002. During the examination, he complained of low back pain with radiating pain down his left leg. He stated his back gave out one or twice a month for about two days, and required rest, heat and prescription medications to alleviate. These symptoms prevent him from bending, lifting, participating in sports or hobbies, and limited his ability to walk for extended periods of time. He further stated he was unemployed due to additional symptoms incurred after a motor vehicle accident. A range of motion testing revealed flexion limited to 60 degrees, extension limited to 15 degrees and lateral bending limited to 30 degrees, bilaterally. Rotation was adequate without complaints of pain. The examiner did note that the Veteran experienced some degree of difficulty and apparent pain while getting off and on the examination table. The examination report referenced a June 2000 X-ray of the lumbar spine which had unremarkable findings. Private treatment records indicate the Veteran received epidural steroid injections from May 2002 to August 2002. In his January 2003 substantive appeal to the Board, the Veteran stated he had chronic severe pain marked with limitation of forward bending in standing position. He also complained of chronic abnormal mobility even when performing non-straining activities and chronic recurring attacks with intermittent relief. At a March 2003 RO hearing, he reported experiencing severe pain once or twice a month, to the point of requiring him to rest for two to three days. He treated the pain with epidural injections and medication. He also reported having had a root block. The Veteran described the frequency of his severe pain as 2 to 3 times a month. He alleged his last VA examination was inadequate because the examiner did not comment on the fact that he could not lay back or get up on his own without assistance from the examiner. Also, he asserted the X-ray relied on for the examination report was almost 2 years old and a more recent MRI showed degenerative disc disease, disc bulge and recess narrowing. The Veteran was afforded another VA examination in April 2004. During this examination, he reported constant pain that increased in intensity with flare-ups. The flare-ups occurred with prolonged standing, sitting, or bending. He avoided lifting. He reported no numbness, weakness, and bladder or bowel complaints. He stated he had erectile dysfunction associated with back pain. At the time, he did not use any assistive device. He also reported being able to work as a bus driver but had missed a few days in the past year due to his back. Upon physical examination, his forward flexion was limited to 60 degrees (out of 90), backward extension to 10 degrees (out of 30), lateral flexion to 10 degrees (out of 30) bilaterally, and rotation to 20 degrees (out of 45) bilaterally. All movements caused pain and the Veteran stopped moving when pain occurred. There was no fatigue, weakness, or lack of endurance. Repetitive testing did not result in additional loss of range of motion. The examiner could not estimate the additional loss of motion that resulted from flare-ups without resorting to speculation. There was also no evidence of spasm, weakness or tenderness with painful motion. The examiner noted that although there was degenerative disc disease with radiating pain, there was no intervertebral disc symptom seen at the examination. The diagnosis was degenerative disc disease with residuals. In a March 2004 VA treatment note, the Veteran reported a history of 3 epidurals and a root block for low back pain within the past year. Private treatment records from the Neurology Consultants of the Carolinas, P.A. show that in a March 2004 MRI, there was evidence of mild degenerative changes with a small central protrusion which was not compressive. In May 2004, the Veteran was found to have low back pain exacerbated by prolonged sitting or standing. Upon evaluation, he was found to have radiculopathy as well as disc degeneration. His current treatment was medication and physical therapy. The physician advised him that his current line of work as a bus driver could make his disease progress more severely. Accordingly, it was recommended that the Veteran take frequent breaks as well as obtain a cushion for the bus seat. His diagnosis was radiculopathy and sciatica. In a February 2005 opinion, Dr. C.N.B stated that based on a review of the evidence or record indicating sciatica and radiculopathy, the Veteran's back should be rated as 40 to 60 percent disabling. In a separate February 2005 note, Dr. K.B.S. mentioned that employment affected the Veteran's physical condition. At a February 2005 VA examination, the Veteran complained of constant back pain that radiated intermittently to his legs with feelings of numbness. He stated he treated the pain with medication and by lying down. He reported no flare-ups except for increased pain associated with any kind of weight bearing, standing, walking, etc. He also reported no incapacitating episodes in the past year with physician prescribed bed rest. The Veteran again complained of erectile dysfunction due to his back pain and did not use any assistive devices except for a back support when driving. He stated he lost about 30 days of work in past year because of problems with driving the bus and the aggravation of bending, twisting and stooping while driving. A physical examination revealed evidence of tenderness to the entire lumbar area with direct palpation. A range of motion testing showed he was able to bend backwards to 15 degrees with pain, bend laterally to 25 degrees with pain, rotate to 45 degrees in either direction with pain, and bend forward to 60 degrees with pain. There was no change in range of motion after repetitive testing. He was diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine with lumbar strain and residuals. In an April 2005 statement, the Veteran's spouse stated it took him an hour to get going in the morning. She reported massaging his back or giving him a heating pad to help manage the pain. She also reported he had taken many sick days from work due to his back and legs and was unable to take his medication before work. This left him in a worse condition upon returning home. In a July 2005 statement, Dr. K.B.S. confirmed the Veteran was unable to take medication while working as bus driver due to the drowsy side effects. He also noted that physical therapy only mildly resolved the symptoms. A December 2006 private treatment note indicated the Veteran's pain was managed by medication, physical therapy and epidural injections. He complained of severe pain to the point of being unable to walk but stated it had resolved at the time. In February 2008, he complained of experiencing somnolence with medication. In February 2009, he complained of pain and a recommendation was made for epidural steroid injection. The Veteran was approved for Family or Medical Leave (FMLA) from December 2008 through February 2009. In his application, his physician noted his low back pain was not incapacitating at the time, but he may be out of work on intermittent bases due to illness and appointments. In December 2008, a VA MRI showed mild degenerative disc disease, noted as being appropriate with age, and slight bulging disc. In a January 2009 statement, the Veteran asserted his job was exacerbating his condition, stating that he could not continue to operate the bus with low back pain, leg pain and weakness. He also mentioned he missed a lot of work due to his service-connected condition, referencing the medication and feelings of pain as causing him to miss work. Employee attendance records show that from January 2006 to January 2009, the Veteran missed approximately 57 days of work due to FMLA and approximately 11 days due to sick days. After reviewing the evidence of record for the period prior to March 8, 2010, the Board finds it is more advantageous to rate the Veteran under the rating code for IVDS in effect prior to September 23, 2002. The evidence of record suggests the Veteran has had degenerative disc disease since his separation from service as indicated in the May 1999 lumbar spine MRI. The record also demonstrates he has complained of symptoms such as a history of his back "giving out" about once or twice a month for about 2 days, leaving him unable to walk or lift with his arms, and flare-ups associated with prolonged standing, sitting or bending. The Board finds the recurring attacks that require bed rest, in combination with his use of epidural injections and a root block for pain management, is indicative of severe recurring attacks with intermittent relief. As such, the Veteran is entitled to a 40 percent disability rating under the criteria set forth in Diagnostic Code 5293, in effect prior to September 23, 2002. A 60 percent rating is not warranted under Diagnostic Code 5293 because there is no evidence of pronounced intervertebral disc syndrome. Although he did complain of radiating pain, such symptomatology, when taken alone, is insufficient to warrant a finding of pronounced intervertebral disc syndrome as there were no additional symptoms of muscle spasm or other neurological findings with little intermittent relief. The Board has also considered whether a disability evaluation higher than 40 percent is warranted under any other applicable Diagnostic Codes, and under more recent versions of 38 C.F.R. § 4.71a. An evaluation higher than 40 percent was not available under Diagnostic Codes 5292 (for limitation of motion) and 5295 (lumbosacral strain), therefore these codes will not be discussed further. Under the September 23, 2002 version of Diagnostic Code 5293, the Veteran would need to have had incapacitating episodes lasting 6 weeks during the past 12 months to qualify for a 60 percent rating. While the Board acknowledges the Veteran's contentions of experiencing recurring attacks that require bed rest, incapacitating episodes are defined as acute signs and symptoms from IVDS that require physician prescribed bed rest and treatment. Based on this definition, the evidence of record does not indicate the Veteran experienced any incapacitating episodes due to his IVDS. In fact, the Veteran denied any incapacitating episodes with physician prescribed bed rest at his February 2005 VA examination. As such, a higher rating is not warranted under the September 23, 2002 version of Diagnostic Code 5293. The Veteran is also not entitled to a higher rating under the current version of 38 C.F.R. § 4.71a, pertaining to disabilities of the spine. Again, recall that this most recent version implements a General Rating Formula for Diseases and Injuries of the spine. Under the General Rating Formula, the Veteran would need unfavorable ankylosis of the entire thoracolumbar spine to qualify for a 50 percent rating. As there is no evidence of ankylosis, the Veteran fails to meet this requirement. The Board further notes he would not qualify for a 40 percent rating under the General Rating Formula as he never exhibited forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Furthermore, although the numbering of the Diagnostic Code for IVDS changed from 5293 to 5243, the rating criteria remained the same and thus the Veteran still did not satisfy the requirement for a 60 percent rating (or any other rating under this code) as he experienced no incapacitating episodes. The Board has also considered whether a separate rating is warranted under Diagnostic Code 5003 for degenerative arthritis established by X-ray findings. However, under this code, limitation of motion is rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the Veteran's limitation of motion is already contemplated under the Diagnostic Code for IVDS; therefore, a separate rating under 5003 is not permissible. As for the Veteran's contentions, while he is competent to report his symptoms, an objective examination is more probative in determining the actual degree of impairment, as pain is a subjective symptom. Moreover, as previously noted, the range of motion testing specifically contemplates the presence of pain. In considering the Veteran's March 2003 statement regarding the adequacy of the July 2002 VA examination, the Board notes the examiner did indicate there was some degree of difficulty while getting on and off the examination table. In addition, the more recent MRI the Veteran referenced appears to be from a May 2002 private treatment record that was not received by the VA until August 2002, after the date of the July 2002 VA examination. Thus the examiner could not have referenced this more recent MRI. Accordingly, the Board finds the July 2002 VA examination report to be adequate Furthermore, the evidence during this period does not demonstrate the Veteran experienced additional functional impairment due to weakness, fatigability, incoordination, or pain on movement. Therefore, a higher rating on this basis is not warranted. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). As previously noted, the Veteran was awarded two separate 10 percent disability evaluations for lumbar radiculopathy to his lower extremities, effective September 23, 2002. As such, an evaluation of 40 percent under Diagnostic Code 5293 cannot extend beyond September 22, 2002, so as to avoid pyramiding. See 38 C.F.R. § 4.14. Thus the appeal is granted as to a disability evaluation of 40 percent, and no higher, from July 16, 1999 through September 22, 2002. It is noted that the combined rating as of September 23, 2002 remained at 40 percent, so while there were separate ratings for orthopedic and neurologic symptoms assigned as of that date, there was not reduction in benefits. As a preponderance of the evidence is against the assignment of an increased evaluation over 20 percent for orthopedic manifestations of the low back from September 23, 2002 through March 7, 2010, the benefit-of-the-doubt rule does not apply to this period, and the appeal to this extent only is denied. 38 C.F.R. § 4.3. Evaluation of Low Back Disability Beginning March 8, 2010 Beginning March 8, 2010, the Veteran's low back disability received an evaluation of 40 percent under Diagnostic Code 5242. 38 C.F.R. § 4.71a (2013). At a March 8, 2010 VA examination, the Veteran mentioned he was on 3 different forms of medication, all of which made him drowsy. His symptoms were made worse by prolonged sitting, walking in excess of 10 minutes, standing in excess of 15 minutes, and cold temperatures. He indicated his symptoms were made better with medication and "time." The Veteran also reported flare-ups occurring once a month, and complained of experiencing difficulties with activities of daily living and working as a bus driver. Specifically, he noted that the bouncing of bus and prolonged sitting hurt his back. Upon physical examination, his gait was normal. A range of motion testing revealed forward flexion limited to 30 degrees, extension to 10 degrees, lateral flexion to 25 degrees and rotation to 30 degrees, all with pain. After repetition, forward flexion was further limited to 20 degrees. The examiner diagnosed him with mild degenerative disc disease and facet arthrosis at L5-S1 with annular bulge. A November 2010 VA radiology report of the lumbar spine revealed normal findings. In February 2011, he was prescribed bed rest for 1-2 days to control pain, if needed. In a March 2011 private treatment note from Carolinas Medical Center University, the Veteran reported experiencing "greater than one year benefit" from the administration of a series of three epidural injections in May 2009. The Veteran was afforded another VA examination in March 2012. During the examination, he reported flare-ups every 2 to 3 weeks for 3 to 7 days. He was unsure of what caused the flare-ups but noted they were alleviated by bed rest, though not prescribed by his doctor. He described his flare-ups as leaving him "unable to hardly do anything." The Veteran reported no history of bowel or bladder problems, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, fatigue, decreased motion, stiffness, weakness, or spasm. He complained of moderate, constant lower back pain that occurred daily. The Veteran described the pain as a sharp pain that radiated to his thighs. He reported no incapacitating episodes and no use of assistive devices. He stated he could not walk up to a mile. A range of motion testing revealed flexion limited to 25 degrees, extension to 10 degrees, lateral flexion to 20 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. There was objective evidence of pain on active range of motion or repetitive motion. Further, there was no additional limitation to range of motion after repetitive testing. A radiology reported indicated evidence of degenerative disc desiccation and disc bulging. As for functional limitations, the Veteran stated his back disability affected his employment due to increased absenteeism, problems with lifting and carrying, and pain. The examiner concluded his back disability would "preclude virtually all forms of physical employment due to high probability of increase in exacerbation and increased lost time from work." The examiner also concluded the Veteran's back disability would limit but not preclude sedentary employment if reasonable accommodations were provided. After reviewing the evidence of record for the period beginning March 8, 2010, the Board finds that an evaluation higher than 40 percent is not warranted for the Veteran's low back disability under the General Rating Formula for degenerative arthritis of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. To warrant a 50 percent disability rating, the evidence would have to demonstrate unfavorable ankylosis of the entire thoracolumbar spine. Rather, the evidence indicates the Veteran's forward flexion was no worse than 25 degrees, with an additional limitation to 20 degrees after repetitive testing. A higher rating is also not warranted under Diagnostic Code 5243 for IVDS as the Veteran has not experienced any incapacitating episodes. While the Board acknowledges a February 2011 VA treatment note prescribing bed rest to control pain as needed, the Board interprets this to be no more than a recommendation as opposed to a prescribed treatment in response to acute signs and symptoms of IVDS. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. Furthermore, the Veteran denied experiencing any incapacitating episodes at his March 2012 VA examination. The Board has also considered the prior versions of 38 C.F.R. § 4.71a, and finds a rating higher than 40 percent is still not warranted. Diagnostic Codes 5286 and 5289 are not applicable as there is no evidence of ankylosis of the thoracolumbar spine. In addition, Diagnostic Codes 5292 and 5295 are also inapplicable as the both offer a maximum rating of 40 percent for limitation of motion and lumbosacral strain. Under the rating code for IVDS in effect prior to September 23, 2002, a 60 percent rating is not warranted because there is no evidence of pronounced intervertebral disc syndrome. Throughout the applicable rating period, the Veteran has consistently denied muscle spasms and there has been no other neurological finding besides his reports of radiating pain, for which he is already being compensated. Again, a separate rating is not warranted under Diagnostic Code 5003 for degenerative arthritis established by X-ray findings because the Veteran is already being rated based on limitation of motion under Diagnostic Code 5242. 38 C.F.R. § 4.71a. Furthermore, the evidence during this period does not demonstrate Veteran experienced additional functional impairment due to weakness, fatigability, or incoordination. Therefore, a higher rating on this basis is not warranted. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). While the evidence does show additional functional impairment due to pain at the March 2010 VA examination, the Board notes the Veteran's forward flexion was only limited to 20 degrees which does not represent the ankylosis necessary for a 50 percent disability rating under the General Formula rating the spine. See 38 C.F.R. § 4.71a (2013). The Board has also considered the Veteran's contentions of pain but assigns a higher probative value to the objective examinations of record, as they are more indicative of the current of severity of the Veteran's low back disability. As a preponderance of the evidence is against the assignment of an increased evaluation beginning March 8, 2010, the benefit-of-the-doubt rule does not apply to this stage, and the appeal to this extent is denied. 38 C.F.R. § 4.3. TDIU The Board has considered whether the Veteran's service-connected disabilities render him unemployable. A total disability evaluation based on individual unemployability due to service connected disorders may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). Alternatively, if a claimant is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in 38 C.F.R. § 4.16(a), the rating authority should refer the matter to the director of the VA Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The central inquiry in either situation is "whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is not required to show 100 percent unemployability; the question is whether he is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed.Cir.2001). Whether the Veteran can actually find employment is not determinative, as the focus of the inquiry is on "whether the Veteran is capable of performing the physical and mental acts required by employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). In order to satisfy the criteria for schedular consideration of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. The Veteran is service connected for a low back disability evaluated as 40 percent disabling from June 16, 1999, 20 percent disabling from September 23, 2002, and 40 percent disabling from March 8, 2010; a right knee disability evaluated as noncompensable from July 16, 1999 and 10 percent disabling from April 29, 2002; a left knee disability evaluated as noncompensable from July 16, 1999 and 10 percent disabling from April 29, 2002; radiculopathy to the right lower extremity evaluated as 10 percent disabling from September 23, 2002; radiculopathy to the left lower extremity evaluated as 10 percent disabling from September 23, 2002; a scar on the right index finger evaluated as noncompensable from July 16, 1999; an inguinal hernia evaluated as noncompensable from July 15, 1999; and erectile dysfunction evaluated as noncompensable from September 25, 2013. Accordingly, because the Veteran did not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a total disability evaluation. 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Thus, entitlement on this basis is not warranted. As for extraschedular consideration, the Board notes the matter was referred to the Director of Compensation and Pension Service for extraschedular consideration and was denied in an April 2013 response. The Board considers the decision of the Director of Compensation and Pension Service to be non-reviewable and thus this matter will not be discussed further. As the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. Thus the claim is denied. 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating of 40 percent, and no higher, is granted from July 16, 1999 through September 22, 2002, for the orthopedic manifestations of a low back disability, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial disability rating in excess of 20 percent for the orthopedic manifestations of a low back disability from September 23, 2002 through March 7, 2010 is denied. Entitlement to a disability rating in excess of 40 percent for the orthopedic manifestations of a low back disability beginning March 8, 2010 is denied. Entitlement to a total disability evaluation based on individual unemployability is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs