Citation Nr: 1452002 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 12-11 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased initial rating in excess of 10 percent for a service-connected lumbar and sacrococcygeal strain. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Wieneck, Associate Counsel INTRODUCTION The Veteran had active service from May 2003 to August 2003; from March 2004 to August 2005; and from June 2007 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned at an April 2014 Board hearing in Washington, D.C. A hearing transcript has been associated with the claims file. During the hearing, the undersigned granted the Veteran's request to hold the record open for a period of 30 days for the submission of additional evidence. In May 2014, the Veteran submitted additional private medical evidence related to his claim and waived initial RO consideration of such evidence. At the hearing, the Veteran elected to proceed without representation. The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and VBMS paperless files. A review of the documents in Virtual VA reveals the April 2014 Board hearing transcript. The remaining documents in Virtual VA and VBMS are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the pendency of the appeal, the Veteran's service-connected lumbar and sacrococcygeal strain has been manifested by severe limitation of motion, due to pain. Forward flexion of the thoracolumbar spine has been limited to 30 degrees or less; unfavorable ankylosis of the entire thoracolumbar spine has not been shown. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a 40 percent rating, but not higher, for service-connected lumbar and sacrococcygeal strain have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295, 5243 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating of his low back condition from the original grant of entitlement to service connection. VA's General Counsel has held that no additional VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, supra at 490. In this case, the Veteran's claim for entitlement to service connection for lumbar and sacrococcygeal strain was granted and an initial rating was assigned in the September 2011 rating decision. The Veteran has been granted entitlement to service connection for lumbar and sacrococcygeal strain, effective the date he filed his claim, and has substantively appealed the initially assigned September 2011 rating. Therefore, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the duty to assist, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. §5103A, 38 C.F.R. §3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the instant claim. The evidence of record includes the Veteran's service treatment records, service dental records, private treatment records, and VA examination reports. Although the Veteran alleged during his April 2014 Board hearing that his condition has worsened since his latest VA examination in September 2013, the Veteran submitted two private examination reports, both dated May 2014. Taken together, both May 2014 reports may be accepted as adequate reports of examination for rating purposes, without further VA examination of the Veteran. See 38 C.F.R. § 3.326. Neither the Veteran, nor his representative, has identified any other development necessary for a fair adjudication of the claim decided herein that has not been completed by the RO. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Increased Rating The Veteran contends that he is entitled to a higher initial rating due to his constant back pain, back spasms, and hip pain. As noted above, the Veteran was initially granted service connection for lumbar and sacrococcygeal strain and assigned a 10 percent rating effective in April 19, 2010, under Diagnostic Codes 5236-5237. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45. Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40 , 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40. "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Evaluating the disability under several diagnostic codes, the Board considers the level of impairment of the ability to engage in ordinary activities, including employment, and assesses the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Lumbar and sacrococcygeal strain is rated under the General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the Formula provides for ratings as follows: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more body height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Associated objective neurologic abnormalities are evaluated separately. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or 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. 68 Fed. Reg. 51,443, Note (5) (Aug. 27, 2003). Normal ranges of motion for the lumbar spine are 90 degrees flexion, and 30 degrees extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a, Plate V (2014). Intervertebral disc syndrome (IVDS) permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating is assigned for incapacitating episodes have a total duration of at least six weeks during the past twelve months. Id. Applying these criteria to the facts of this case, the Board finds that a rating of 40 percent, but no higher, is warranted for the entire appellate period. The evidence for consideration includes two VA compensation examination reports, two private examination reports, the Veteran's private treatment records, the Veteran's service treatment records (STR), the Veteran's lay statements, and a statement from the Veteran's friend. A July 2011 VA examination report reflected the Veteran's complaints of severe lower back pain. The Veteran also associated weakness, stiffness, fatigue, spasms, decreased motion, and paresthesia with his back condition. The Veteran reported that he could walk 2.5 miles in about 3 hours. The pain was reportedly made worse with physical activity, stress, and sleeping more than 7 hours. He reported arthritis and an inability to sit or stand for prolonged periods of time. Treatment consisted of over-the-counter medication, massage, acupuncture, and Jacuzzi use. Although surgery was recommended, the Veteran reported that he was never hospitalized nor had surgery for his back condition. Physical examination conducted in the July 2011 VA examination found posture and gait to be within normal limits. Muscle spasm was absent and there was no ankylosis of the thoracolumbar spine. Range of motion was evaluated and the Veteran was found to have range of motion within normal limits. Forward flexion was found to be 90 degrees, even with pain, and extension was found to be 30 degrees, even with pain. No neurological deficits were found. A September 2013 VA examination report reflected the Veteran's complaints of popping in his hip socket, an inability to stand or sit for more than 10 minutes, and an inability to lay flat on his back. It was also noted that the Veteran reported tingling in his back and legs during flare-ups along with an inability to move due to swelling in his back. Physical examination conducted in the September 2013 found forward flexion to be to 80 degrees and objective evidence of painful motion began at 65 degrees. Extension was found to be to 30 degrees or greater and there was no objective evidence of painful motion found. Right lateral flexion was found to be to 30 degrees or greater and there was no objective evidence of painful motion found. Left lateral flexion was found to be to 30 degrees or greater and there was no objective evidence of painful motion found. Right lateral rotation was found to be to 30 degrees or greater and there was no objective evidence of painful motion found. Left lateral rotation was found to be to 30 degrees or greater and there was no objective evidence of painful motion found. Repetitive motion testing revealed no additional limitation of motion. The examiner noted that the Veteran's had functional loss and/or functional impairment of his thoracolumbar spine with contributing factors being weakened movement, excess fatigability, and pain on movement. The VA examiner also noted that it was tender to palpitate in the joints and/or soft tissue of the thoracolumbar spine and that the Veteran did not display guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex, and sensory testing were normal. The examiner found no signs of radiculopathy or other signs of neurologic abnormalities. The September 2013 VA examiner also indicated that the Veteran did not have IVDS. Imaging studies did not reveal arthritis, vertebral fracture, or any other significant diagnostic results. The functional impact on the Veteran's ability to work was noted as functional limitation due to chronic pain and weakness. During the April 2014 Board hearing the Veteran testified that the September 2013 and July 2011 VA examiners "ignored everything that [he] was trying to state" and that during the range of motion testing they "weren't really clear as to how far they wanted [him] to bend down." The Veteran stated that during range of motion testing he wanted to stop at the point of discomfort, but asserts that both examiners "kept on pushing [him] to go" further past the point where he felt uncomfortable. In May 2014 the Veteran submitted two private medical examination reports. The first report was signed by E.K., D.O. This physician noted pain in the low back, popping pain in the bilateral groin regions, and tailbone pain. The pain was reported as an 8/10 with an average pain level of 9/10. Flare-ups were reported to be caused by sitting, standing, walking, bending backward, lifting, lying flat, bending to the right/left side, driving, and cold/damp weather. Treatment included pain medication, avoiding strenuous activity, and applying heat and ice. Physical examination by E.K., D.O. revealed tenderness upon palpation of the lower paraspinals/facets, tenderness upon palpation of the inferomedial to the posterior superior iliac spine bilaterally, and tenderness upon palpation of the bilateral upper gluteal regions. During range of motion testing, extension was reported as being limited to 10 degrees due to pain and forward flexion was reported as being limited to 20 degrees due to pain. Strength, reflexes, and sensation were reported as normal. The second May 2014 private medical examination report was signed by B.G., D.P.T. This physician noted chronic lower back and upper back pain that "shoots down to the hip and thigh region." Also noted was the Veteran's complaints that both hips "pop" and the inability to lay flat on his back due to tailbone pain. The Veteran's pain was rated as an 8/10 and pain was reportedly experienced when driving, sitting at his desk job, and getting up from his desk to walk to the printer. Physical examination by B.G., D.P.T. revealed that the Veteran's forward trunk flexion test showed that he could "reach his mid thighs and is limited at that [point] by reports of central upper lumbar pain." Standing extension was reported as "limited 75%" and right and left rotation was limited "10%" and "25%" respectively. Also reported was "mild stiffness in [the] lumbar spine segments with localized pain [with] muscle guarding." The Veteran's gait consisted of a "slow cadence, decreased stride length and shuffling." The Veteran is currently in receipt of a 10 percent rating for his service-connected lumbar and sacrococcygeal strain. Considering the pertinent evidence discussed above, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, an initial 40 percent rating, but no higher, for a service-connected lumbar and sacrococcygeal strain is warranted from the April 2010 effective date of the award of service connection. Collectively, the testimony presented during the April 2014 Board hearing and both May 2014 private examination reports, suggest that, since April 2010, the Veteran has experienced more limited range of motion than what was reported by either the July 2011 or the September 2013 VA examiner. Both May 2014 private examiners reported that the Veteran's range of motion was significantly more limited than the reports given by the July 2011 and September 2013 VA examiners. Specifically, private examiner E.K., D.O reported that the Veteran's forward flexion was limited to 20 degree due to pain and examiner B.G., D.P.T. reported that standing extension was "limited 75%." In addition, the Veteran testified that both VA examiners "ignored everything that [he] was trying to state" and "kept on pushing [him] to go" further past the point where he felt uncomfortable during range of motion testing. Review of the 2010 examination shows that his complaints were very similar to those recorded in May 2014. For instance, in 2010, the Veteran reported complaints of severe lower back pain, with associated weakness, stiffness, fatigue, spasms, decreased motion, and paresthesia. The pain was reportedly made worse with physical activity, stress, and sleeping more than 7 hours. He reported arthritis and an inability to sit or stand for prolonged periods of time. The complaints recorded in May 2014 are similar. The Veteran reported that the pain level averaged 9/10, and that flare-ups were caused by sitting, standing, walking, bending backward, lifting, lying flat, bending to the right/left side, driving, and cold/damp weather. The second May 2014 examiner physician noted chronic lower back and upper back pain that "shoots down to the hip and thigh region," and reported that both hips "popped" and the Veteran was unable to lay flat on his back due to tailbone pain. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected lumbar and sacrococcygeal strain more nearly approximates a 40 percent disability rating, but no higher. A 50 percent rating is not warranted as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is not warranted as there is no evidence of unfavorable ankylosis of the entire spine. The Veteran has not alleged, that any portion of his thoracolumbar spine was ankylosed in the neutral position, in flexion, or in extension. He has also not alleged that he experienced such symptoms as difficulty talking due to limited line of vision, difficulty breathing or eating, atlantoaxial or cervical subluxation or dislocation, or nerve root stretching, as is required for unfavorable ankylosis for VA compensation purposes. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In addition, while there is evidence of functional loss due to pain of the thoracolumbar spine that would otherwise warrant assigning a higher rating, such functional loss does not more nearly approximate unfavorable ankylosis of the thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, supra. In this regard, neither of the VA examiners nor the private examiners noted additional limitation with repetitive motion or otherwise described any symptomatology tantamount to unfavorable ankylosis. Under these circumstances, there is no basis for a rating higher than 40 percent in light of the factors set forth in 38 C.F.R. §§ 4.40, 4.45, and 4.59. In addition, Diagnostic Code 5243, contemplating IVDS, may not serve as a basis for a rating higher than 40 percent. It has not been diagnosed. The Board has considered whether further staged ratings under Fenderson and Hart, supra, are appropriate for the Veteran's service-connected lumbar spine disorder; however, the Board finds that his symptomatology has been stable throughout this appeal period. Therefore, assigning further staged ratings for such a disability is not warranted. The Board has also considered whether other diagnostic codes are applicable to the Veteran's low back disability during this portion of the period on appeal. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). However, although the Veteran's condition has also been characterized as reduced lordosis and lumbar facet syndrome, the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Here, because the symptomatology associated with the Veteran's lumbar and sacrococcygeal strain is duplicative or overlapping with the symptoms associated with his reduced lordosis and lumbar facet syndrome, separate rating for these disorders is not applicable. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine disorder with the established criteria found in the rating schedule. The Veteran's primary complaints and symptomatology involving his lumbar and sacrococcygeal strain include pain, muscle spasms, and limitation of motion, all of which are addressed in the applicable diagnostic codes. Here, the rating is increased because the most recent examinations showed that there was additional limitation of motion as a due to the symptoms described above. Therefore, the Board finds that the Veteran's lumbar spine symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms of his lumbar spine that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. As the Board has determined that the first factor of the Thun test is not met, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Id. The Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the evidence of record suggests that the Veteran has been employed during at least the majority of the appeal period, if not the entire appeal period. Specifically, the May 2014 examination reports indicated that the Veteran worked full-time at a desk job and there is no indication that the Veteran is currently unemployed. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. ORDER A 40 percent initial disability rating for lumbar and sacrococcygeal strain for the entire initial rating period is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs