Citation Nr: 1539530 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 07-31 366A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to December 17, 2010 for lumbar spine disability. 2. Entitlement to an evaluation in excess of 20 percent from December 17, 2010 to May 18, 2012 for lumbar spine disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to May 19, 2012. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1967 to August 1971 and from February 1972 to March 1988. These matters return on appeal to the Board of Veterans' Appeals (Board) by the way of a September 2014 Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court), which vacated a June 2013 Board decision, which in pertinent part, denied the claim for an initial increased rating in excess of 10 percent for lumbar spine disability as well as an April 2014 Court Order, which endorsed an April 2015 Joint Motion for Remand and vacated a June 2014 Board decision that denied an increased evaluation in excess of 20 percent prior to May 12, 2012 as well as claim for TDIU prior to May 12, 2012. The Veteran's claims were remanded back to the Board for compliance with the September 2014 Memorandum Decision and April 2015 Joint Motion for Remand. As a matter of background, these matters originally arise from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), located in Columbia, South Carolina. By the way of a July 2012 in rating decision, the RO increased the rating for degenerative disc disease of the lumbar spine to 20 percent from December 17, 2010. The RO also assigned separate ratings of 10 percent for radiculopathy of each lower extremity effective May 19, 2012, which the Veteran did not appeal and the ratings are not on appeal. In March 2013, the Veteran testified during held via videoconference capabilities with a member of the Board who has since retired. A transcript of the hearing has been associated with the claims file. In January 2015, the Veteran was notified that the Veterans Law Judge (VLJ) who presided over the Board hearing had since retired from the Board and was asked whether he would like to appear before another VLJ. The Veteran was notified that, if he failed to respond to this letter within 30 days from the date of this letter, the Board would assume that he did not want another hearing and proceed accordingly. As the Veteran failed to respond to this letter, an additional hearing is not needed. In June 2013 decision, the Board denied the claim for an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine prior to December 17, 2010. The Veteran appealed to the Court giving rise to the September 2014 Memorandum Decision. Also, in June 2013, the Board remanded the remaining issues on appeal for additional development, to include VA examination and referral of the claims to VA Director of the Compensation Service for consideration of extraschedular consideration under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). While on appeal, in an August 2013 rating decision, the RO increased the rating for degenerative disc disease to 40 percent before July 29, 2013, and to 50 percent from July 29, 2013. In the June 2014 decision, the Board denied an initial rating higher than 20 percent prior to May 19, 2012, a 40 percent rating from May 19, 2012 to July 28, 2012, and a 50 percent rating since July 29, 2013 for lumbar spine disability, as well as denied an extraschedular rating for lumbar spine disability. Also in that decision, the Board awarded TDIU on an extraschedular basis, effective from May 19, 2012 to July 29, 2013. The Veteran only appealed the denial of a higher evaluation for lumbar spine disability prior to May 19, 2012 as well as TDIU on an extraschedular basis prior to May 19, 2012 giving raise to the April 2015 Court Order. During the pendency of this appeal, the Veteran's claims folder was processed using the VA paperless claims processing systems, Veterans Benefits Management System (VBMS) and Virtual VA. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. During the period prior to December 17, 2010, the Veteran's lumbar spine disability was manifested by x-ray evidence of degenerative disorder, which in consideration of additional functional loss due to pain, more closely approximates forward flexion of the thoracolumbar spine less than 60 degrees but greater than 30 degrees; ankylosis of the entire thoracolumbar or evidence of incapacitating episodes of IVDS is not shown. 2. For the period from December 17, 2010 to May 18, 2012, the Veteran's lumbar spine disability was manifested by no more than x-ray evidence of degenerative disorder that results in forward flexion of the thoracolumbar spine less than 60 degrees but greater than 30 degrees, even with consideration of additional functional loss due to pain; ankylosis of the entire thoracolumbar or evidence of incapacitating episodes of IVDS is not shown. 3. Prior to May 19, 2012, the Veteran's service-connected lumbar spine disability, rated as 20 percent disabling, does not meet the combined schedular requirements for TDIU, and his disability, standing alone, is not of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 20 percent, and not higher, prior to December 17, 2010, for lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2014). 2. The criteria for entitlement to an evaluation in excess of 20 percent from December 17, 2010 to May 18, 2012 for lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2014). 3. The criteria for an award of TDIU on an extraschedular basis prior to May 19, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Concerns As noted in the Introduction, in June 2013, the Board remanded the matters of increased ratings and TDIU back to the Agency of Original Jurisdiction (AOJ) for additional development. In addition, in September 2014 and April 2015 the Court remanded back to the Board the issues of initial increased rating prior to December 17, 2012, and increased rating and TDIU prior to May 19, 2012 for additional consideration and development. Pursuant to the Board's June 2013 remand instructions, the Veteran was afforded with a new VA examination in June 2013 and his claims were referred to the VA Director of Compensation for extraschedular consideration. The record now contains an October 2013 administrative decision from the Director of Compensation for extraschedular consideration under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). In the September 2014 Memorandum Decision, the Court found that the Board, in the June 2013 decision, failed to provide sufficient reasons and basis when it discounted the medical findings in a February 2005 private treatment record, and instead, it erroneously relied upon a February 2006 VA examination report. The Court found that the February 2006 VA examination report was inadequate because the VA examiner was unable to provide an opinion on the Veteran's functional loss during flare-ups without resort to mere speculation. The Court found that a remand was needed to reconsideration of the February 2005 private treatment record and to provide the Veteran with a new VA examination that accounted for functional loss during flare-ups. At this time, the Board finds that a new VA examination is not need despite the September 2014 Court's instructions. In this regard, the Board notes that since 2006, the Veteran has been afforded with three additional VA spine examinations to determine the severity of his disability, to include consideration of functional loss. See December 2010, May 2012, and June 2013 VA examination reports. Notably, in the April 2015 Joint Motion for Remand, the parties did not assert that the December 2010 VA spine examination was not adequate, nor has any question about the adequacy of the May 2012 or June 2013 VA examinations been raised. Given the subsequent adequate VA spine examination reports, as well as in light of economic jurisprudence, the Board finds that it may proceed with adjudication of the initial increased rating claim without prejudice to the Veteran. In the April 2015 Joint Motion for Remand, the parties contended that in the June 2014 decision, the Board failed to provide adequate reasons and basis for the denial of an evaluation in excess of 20 percent for lumbar spine disability prior to May 19, 2012 and denial of TDIU prior to May 19, 2012. The parties asserted that in regards to the increased rating claim, the Board failed to adequately address the medical evidence in light of Mitchell v. Shinseki, 25 Vet.App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet.App. 202, 206 (1995), and 38 C.F.R.§§ 4.40, 4.45. [R. at 9-12 (1-20)]. The parties agreed that the Board also erred when it failed to acknowledge favorable evidence of unemployability dated prior to May 19, 2012. In the Joint Motion for Remand, the parties concluded that the issues should be returned to the Board for consideration of the above and to provide adequate statement of reasons and bases. It is noted that the parties did not suggest that a remand was needed in order to address these issues. Instead, it was merely argued that the Board should address the claims in consideration of applicable law and medical evidence. Adjudication may proceed because such development fully or at least substantially has been completed. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). VA's Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. These issues on appeal arise from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection for lumbar spine disability. Notably, a claim for TDIU is considered part and parcel to an increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for the issues. The RO has obtained all of the Veteran's available service treatment records, records from Social Security Administrations, and identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the Veteran was provided with VA spine examination in December 2010. The VA examination was performed by a VA examiner that had reviewed the Veteran's claims file, the history of the condition with the Veteran, examined the Veteran, and included rationales for the conclusions reached. Moreover, the December 2010 VA examiner addressed the question on whether the Veteran's lumbar spine disability impacted his ability to work. The Veteran was also afforded with VA spine examinations in May 2012 and June 2013. The Board finds these examinations are adequate for adjudication of the issues on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not claimed that any of these examinations were inadequate. The Veteran testified at a Travel Board hearing in March 2013 before a VLJ who has since retired from the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2013 Board hearing, the VLJ addressed the criteria for service connection and indicated that VA would obtain all VA mental health treatment records. Neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Rating factors for a disability of the musculoskeletal system included functional loss. A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. The Veteran seeks initial higher evaluations for his lumbar spine disability. As noted in the Introduction, the Veteran limited his appeal as to increase ratings for lumbar spine disability prior to May 19, 2012. See September 2014 Court Memorandum Decision and April 2015 Joint Motion for Remand. The Veteran has been assigned a 10 percent evaluation prior to December 17, 2010, and a 20 percent evaluation from December 17, 2010 to May 19, 2012, under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis of the spine and loss of motion. The Schedule for Rating Criteria mandated that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent rating when there is 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 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 of more of the height. A 20 percent disability rating is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent disability rating is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine 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 General Rating Formula explains 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. The criteria for Intervertebral Disc Syndrome (IVDS) also potentially apply. Under the rating criteria, IVDS may be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The specific formula for IVDS provides: If there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks, a 10 percent rating is warranted; if at least 2 weeks but less than 4 weeks, a 20 percent rating; if at least 4 weeks but less than 6 weeks, a 40 percent rating is warranted; and where there are incapacitating episodes with a total duration of at least 6 weeks during the past 12 months, the assignment of a maximum 60 percent rating is warranted. Note (1) to the rating criteria provides that 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. 38 C.F.R. § 4.71a, for Intervertebral Disc Syndrome. In this case, the Veteran seeks higher initial evaluations for his lumbar spine disability. He was originally assigned a 10 percent evaluation, effective from August 2005, and his disability rating was increased to 20 percent, effective from December 17, 2010, and it was subsequently increased thereafter. Again, the Veteran has only appealed the denial of his claims for increased ratings prior to May 19, 2012. This decision is limited to the question of increased ratings for lumbar spine disability for the periods prior to May 19, 2012. A review of the records show that private medical records dated in November 2000 reveals that the Veteran had surgery for a herniated disc at L4-L5 with nerve compression. In May 2003, the Veteran had a laminectomy decompression at L4. In February 2005, the Veteran underwent an examination in conjunction with his claim for Social Security Administration (SSA) disability benefits. The report shows that the Veteran complained of increasing low back pain since 2004. He specifically complained of pain on forward flexion of his lumbar spine. It was reported that the Veteran could not walk any significant length or duration without requiring rest and that the Veteran had some difficulty with prolonged driving. Range of motion testing of the lumbar spine revealed that the Veteran had forward flexion limited to 72 degrees, but with consideration of painful motion and symptoms on repetition, his flexion was limited to 38 degrees. Veteran denied leg or foot pain. The examiner found that the Veteran was unable to perform activity of prolonged sitting as required of a truck driver because of his lumbar spine disability. It was also felt that his disability caused him difficulty with lifting and bending. In March 2005, the Veteran was awarded disability benefits from the SSA due to discogenic and degenerative disease of the back and pulmonary insufficiency, effective from July 2004. On VA examination in February 2006, the Veteran described constant low back pain since 1972 that was elicited with physical activity, which was relieved with medication. The Veteran stated that his condition did not cause incapacitation or time lost from work; however, the Veteran reported that functional impairment due to his lumbar spine disability included limited walking and prolonged standing. On physical examination, the Veteran's posture and gait were normal without the need for an assistive device. The Veteran complained of radiating pain on movement of the legs. There was no ankylosis. Flexion was to 90 degrees, extension was to 30 degrees, lateral flexion, left and right, was to 30 degrees, and rotation, left and right, was to 30 degrees. The combined range of motion (90+30+30+30+30+30 = 240) was 240 degrees. X-rays showed advanced degenerative disc disease of the L4-L5 vertebrae. Private medical records from August 2004 to August 2010 show: a stable back following surgery (August 2004), no evidence of motor or sensory deficit (August to December 2004, January 2005, February 2005, August 2005, October 2005, February and April 2006, January 2007, April 2008, September 2009, and March and August 2010), full range of motion and no back or leg pain (February 2005, August 2005, October 2005, February and April 2006, January 2007, April 2008, September 2009, and March and August 2010). In the December 2010 VA examination, the VA examiner recorded that the Veteran complaints of severe low back pain with weekly flare-ups lasting from one to two days. His low back pain was aggravated by prolonged sitting, standing and lying down. The Veteran noted that he remained sedentary during a flare-up. He also complained of fatigue, stiffness, spasms, weakness, and decreased range of motion associated with his lumbar spine disability. On clinical evaluation, the VA examiner noted that the Veteran had a normal gait but his posture was fixed in a stooped position on flexion due to spinal stenosis. However, there was no evidence of ankylosis of the entire thoracolumbar spine. The spine was tender upon palpation but there was no evidence of muscle spasms or abnormal spine curvature. Range of motion testing of the lumbar spine revealed forward flexion was limited from 10 to 70 degrees with evidence of painful motion but without evidence of additional limitation of motion after repetition due to pain. The neurological was within normal limits. The results from an August 2010 MRI report revealed findings of degenerative arthritis with spinal stenosis from L3 to SI. The Veteran's lumbar spine disability caused him function impairment due to significantly decreased mobility, as well as caused difficulty with lifting and carrying, and painful motion. The VA examiner stated that the Veteran was not capable of employment in a physical or sedentary position due to the lumbar spine disability. On May 19, 2012, the VA examination report shows that the Veteran's forward flexion was limited to 50 degrees. The Veteran was unable to perform repetitive use testing secondary to pain and instability. The VA examiner concluded that the spine disability did not impact on the Veteran's ability to work. Period Prior to December 17, 2010 The record shows that from the date of the award of service connection for lumbar spine disability until December 17, 2010, the Veteran's lumbar spine disability was manifested by x-ray evidence of degenerative disorder with subjective complaints of pain with increased activity and objective findings of reduced range of motion to 38 degrees on flexion due to additional limitation from pain after repetitive motion. The Veteran had a history of significant low back pain since 2004, which limited his ability for prolonged walking and standing. The Board finds that this symptomatology supports the assignment of a 20 percent evaluation under Diagnostic Code 5242 for loss of motion of the lumbar spine. See 38 C.F.R. § 4.71a. The Board acknowledges that the findings from the February 2006 VA examination demonstrate that the Veteran's lumbar spine disability was manifested by full range of motion, but with objective evidence of painful motion and subjective complaints of increased symptomatology during flare-ups. The Veteran's symptomatology from the February 2006 VA examination, on its face, only supports a compensable 10 percent disability rating based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. However, the VA examiner failed to provide a medical opinion that accounted for the functional impairment as a result of the lumbar spine disability during flare-ups. When considering the Veteran's complaints of low back pain, with episodes of flare-ups of increased pain with physical activities and with the objective findings of additional limitation to 38 degrees after repetitive use, the Board finds that the severity of his lumbar spine symptomatology more closely approximates forward flexion of greater than 30 degrees but not greater than 60 degrees. See Mitchell, 25 Vet. App. at 33, 43; DeLuca, 8 Vet. App. 202. The Board finds that an evaluation of 20 percent, and not higher, for lumbar spine disability for loss of motion is warranted for the period prior to December 17, 2010. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. A higher evaluation for lumbar spine disability is not warranted for the period prior to December 17, 2010. In this regard, the evidence of record does not show that the Veteran's range of motion more closely approximates limitation to 30 degrees or less on forward flexion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. There is also no evidence of ankylosis of the entire thoracolumbar spine or incapacitating episodes. Moreover, the medical records do not support finding that a physician has prescribed bed rest for IVDS with incapacitating episodes having a total duration of at least two weeks, and the 2010 VA examiner found that the Veteran did not have IVDS. The assignment of a 20 percent rating already includes the findings based on additional limitation and functional impairment associated with the lumbar spine, as noted during the February 2005 evaluation. See DeLuca, 8 Vet. App. at 202; 38 C.F.R. §§ 4.40, 4.45, 4.71a. Moreover, the contemporaneous private treatment records consistently reflect no complaints of low back pain or limitation of motion in the lumbar spine. See private treatment records dated 2005 to 2010. There is no evidence of further additional disability due to weakness, fatigue, or incoordination that has not already been considered in the assignment of the 20 percent evaluation. Therefore, the symptomatology associated with the Veteran's lumbar spine disability warrants a 20 percent rating, but not higher, for the period prior to December 17, 2010. Period from December 17, 2010 to May 18, 2012 Based on a review of the evidence, the Board does not find that the Veteran's lumbar spine disability support the assignment of an evaluation in excess of 20 percent for the period from December 17, 2010 to May 18, 2012. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board finds that the Veteran does not meet the criteria for any higher rating, such as a 40 percent rating (forward flexion of 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine), 50 percent (unfavorable ankylosis of the entire thoracolumbar spine), or 100 percent (unfavorable ankylosis of the entire spine). See 38 C.F.R. § 4.71a. The December 2010 VA examiner found that the Veteran has forward flexion of the lumbar spine of more than 30 degrees, even considering limitations due to pain, and, consequently, and determined that the Veteran's thoracolumbar spine was not ankylosed. While it was observed that the Veteran had a stooped posture fixed in flex position due to lumbar spinal stenosis from L3 to SI, the 2010 VA examiner concluded there was no evidence of anklyosis of the entire thoracolumbar spine. Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). The medical records clearly demonstrate that while the motion of the Veteran's lumbar spine has been limited, some range of motion is present throughout the applicable period under appeal. As shown above, 2010 VA examiners have specifically noted that the Veteran did not have any spinal ankylosis. Thus, it cannot be concluded that the Veteran has ankylosis of the thoracolumbar or lumbar spine, and certainly not unfavorable ankylosis. There is no basis, therefore, for a higher evaluation inasmuch as there is no clinical evaluation of ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran does not meet the criteria for any higher rating based on limitation of motion, including after consideration of functional impairment and the DeLuca factors such as pain during flare-ups or after repeated motion. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca, 8 Vet. App. at 202. The Board has considered the Veteran's reports that he is restricted to a sedentary position during weekly flare-ups of severe low back pain; however, this report does not demonstrate that his limitation of motion is reduced to 30 degrees or less during these episodes. Although the VA examiner noted that the Veteran's range of motion was limited by painful motion, this has already been contemplated by the 20 percent disability rating for limitation of motion. The 2010 VA examiner specifically identified that no more than 70 degrees of limitation of flexion was demonstrated after repetition use, which is contemplated by the criteria for 20 percent evaluation due to limitation of flexion less than 60 degrees but greater than 30 degrees, when considering the DeLuca factors. There was no evidence of additional limitation after repetitive use to more closely approximate limitation to 30 degrees or less on forward flexion of the thoracolumbar spine. See Mitchell, 25 Vet. App. at 33, 43; DeLuca, 8 Vet. App. 202. Thus, the Veteran's functional loss has already been considered in the determination of the proper rating assigned in this case. In addition, a higher evaluation is not warranted based on IVDS that results in incapacitating episodes. The VA examiner found that the Veteran did not have IVDS. Moreover, the medical records do not support finding that a physician has prescribed bed rest for IVDS with incapacitating episodes having a total duration of at least two weeks. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The preponderance of the evidence is against a disability rating higher than 20 percent for the period from December 17, 2010 to May 18, 2012 for the Veteran's lumbar spine disability. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Other Considerations The schedule also provides for a separate disability rating for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Notably, the Veteran has already been assigned compensable neurologic involvement in the Veteran's right and left lower extremities, effective from May 19, 2012, in a July 2012 rating decision. The Veteran did not appeal that initial award and the matters are not currently on appeal. With respect to other neurologic disorders, the Veteran has consistently denied any bladder or bowel problems associated with his lumbar spine disability and none of the VA treatment records references objective bladder dysfunction impairments associated with his lumbar spine disability. The Board finds that the preponderance of the medical evidence is against a finding that the Veteran has any additional objective neurologic abnormalities. The medical evidence of record also does not support a separate compensable rating for residual of surgical scars. Of note, there is no basis for a compensable disability rating for the associated scar, given the small size, and lack of evidence of any relevant symptomatology such as causing limited motion or function of affected part, or instability, or pain. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008) and (2014). As such, there is no other provision under which any other additional separate disability rating may be assigned for the Veteran's disability. In short, the evidence does not support the assignment of any separation compensable evaluation for associated disabilities. After a review of all the evidence of record for the entire period under consideration, the Board finds that prior to December 17, 2010, an evaluation of 20 percent, and not higher, is warranted for lumbar spine disability; however, for the period from December 17, 2010 to May 18, 2012, an evaluation in excess of 20 percent is not warranted for lumbar spine disability. An additional staged rating is not appropriate in the present case because the Veteran's symptoms remained constant throughout the course of the period prior to May 19, 2012. Extraschedular Consideration The above determinations are based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. However, the regulations also provide for exceptional cases involving compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that VA shall from time to time readjust this schedule of ratings in accordance with experience. The Veteran argues that an extraschedular rating is warranted because the service-connected lumbar spine disability results in marked interference with employment, and manifests to a severity that is not contemplated by the schedular criteria. In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether a claimant's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the claimant's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. The issue of an extraschedular rating was referred to the Director of Compensation and an extraschedular rating was found to be unwarranted. See October 2013 administrative decision from VA Director of Compensation. However, the Board must still review whether the Veteran's disability picture is contemplated by the rating schedule and, if not, whether there is an exceptional disability picture or other related factors such as marked interference with employment and frequent periods of hospitalization. Here, the Board is cognizant of the Veteran's assertions that his lumbar spine disability impacts his occupational functioning because of decreased mobility, problems with prolonged standing and walking, and weakness or fatigue. Nevertheless, the Board considers it unnecessary to award the Veteran's disability for an extraschedular rating as the regular schedular standards obviously address this manifestation loss of motion in the lumbar spine due to pain, weakness, and tenderness. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Moreover, the competent and credible evidence of record does not otherwise show that the Veteran's lumbar spine disability results in a marked functional impairment to a degree other than that addressed by VA's Rating Schedule. Also, the Board considers it significant that the particular regulatory criteria used to rate the Veteran's service-connected disabilities expressly contemplate functional loss in the assignment of a schedular evaluation. 38 C.F.R. §§ 4.59, 4.71a. Although the Veteran stopped working in 2004 due to the disability of the lumbar spine disability, the manifestations of the disability are not so exceptional as to render impractical the application of the regular schedular standards, and the preponderance of the evidence is against an extraschedular rating under 38 C.F.R. § 3.321(b) basis. The Veteran's unemployment will also be considered on an extraschedular basis under 38 C.F.R. § 4.16(b). Total Disability Rating due to Individual Unemployability (TDIU) The Veteran seeks entitlement to a TDIU prior to May 19, 2012. He has previously been awarded TDIU on an extraschedular basis from May 19, 2012 to July 29, 2013, and thereafter an award of TDIU on a schedular basis. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Board notes that prior to May 19, 2012, the Veteran is only service-connected for lumbar spine disability evaluated as 20 percent disabling. His service-connected disability does not meet the percentage rating standards for TDIU prior to May 19, 2012. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board, however, does not have the authority to make an extraschedular assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation & Pension Service. The rating board did not initially refer this case for extraschedular consideration. The Board remanded in June 2013, in part, for this case for extraschedular consideration because of the Veteran's allegations of unemployment due to his service-connected disability. The Director of the Compensation Service issued an October 2013 determination that an extraschedular rating was not warranted. Where there has been a review by the C&P Director, that determination is subject to review by the Board on appeal. Anderson v. Shinseki, 22 Vet. App. 423 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). The Board thus here conducts its own review of the extraschedular TDIU question. In determining whether a claimant is unable to secure or follow a substantially gainful occupation, 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, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a Veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record shows that the Veteran has not worked due primarily to his back disability since 2004 as shown by the records of the Social Security Administration. The records associated with the SSA award included a history that the Veteran had worked as a long-haul truck driver from 1989 to July 2004 and that he had no additional occupational training. In the February 2005 SSA examination report, the examiner found that the Veteran was unable to perform activity of prolonged sitting as required of a truck driver because of his lumbar spine disability, and it was also felt that his spine disability caused him difficulty with lifting and bending. In addition, the December 2010 VA examiner concluded that the Veteran was not capable of employment in a physical or sedentary position due to the lumbar spine disability. However, during the February 2006 VA examination, the Veteran specifically denied missing any work because of his lumbar spine disability, despite his limitation with prolonged sitting and standing because of his lumbar spine disability. Moreover, the contemporaneous private treatment records consistently reflect no complaints of low back pain or limitation of motion in the lumbar spine. See private treatment records dated 2005 to 2010. Also, the May 2012 VA examiner concluded that the Veteran's lumbar spine disability was not so severe so as to preclude substantially gainful sedentary or physical employment. In the October 2013 administrative decision, the VA Director of Compensation found that an extraschedular rating was not warranted. The Director noted this conclusion was based on a review of the Veteran's claims folder, including the findings from the February 2005 SSA evaluation, February 2006 VA examination, and December 2010 VA examination, as well as the Veteran's lay statements and testimony. The Director noted the objective findings of limitation of lumbar spine motion as well as the subjective complaints of increased pain with activities, to include prolonged sitting and standing. The Director stated that based on a review of the record, there was no evidence that demonstrated that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service connected disabilities. Based on a review of the evidence of record, the Board finds that the objective evidence as to the severity of the Veteran's service-connected lumbar spine disability, standing alone, does not show his disability would prevent him from being employed prior to May 19, 2012. The record demonstrates that the Veteran cannot return to his former employment as a truck driver because of the severity of his lumbar spine disability interferes for prolonged sitting. However, the record does not support a finding that he cannot return to any form of gainful employment when all the factors are considered. The Veteran claims that he is unable to work because of the severity of his service-connected lumbar spine disability. The SSA records support the Veteran's contentions that he is no longer able to work as a truck driver because of the severity of his lumbar spine disability. However, SSA assessment included nonservice-connected disability, such as pulmonary disorder, in determining that he was too disabled to work. The Board has also considered the December 2010 VA examiner's medical conclusion that the Veteran's service-connected lumbar spine disability precluded his employability. However, the May 2012 VA examiner found that the Veteran's service connected disabilities did not preclude him from limited or sedentary employment. Notably, the severity of the Veteran's disability was more severe during the May 2012 VA examination and his disability also included neurologic involvement which was not observed prior to the May 2012 VA examination report. Moreover, none of the contemporaneous private treatment records dated from 2004 to 2010 suggest that the Veteran was unable to work because of his lumbar spine disability. Rather, these private treatment records suggest that the Veteran had other significant nonservice-connected disabilities, such as residuals of transient ischemic attack, chronic pulmonary disorder, and cardiovascular disease that limited his physical activities. While the Veteran's service-connected lumbar spine disability does impact his ability for prolonged sitting required of a truck driver, there is no indication that the Veteran is precluded from all types of light employment (ones that would allow for intermittent standing). While the Board cannot ignore the December 2010 VA examiner's medical conclusion, the Board does have the authority to discount the weight and probity of evidence in the light of its relationship to other items of evidence. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Here, the Board finds that the contemporaneous medical evidence of record is more persuasive than the October 2010 VA examiner's medical conclusion on the Veteran's ability to engage in substantially gainful employment prior to May 19, 2012. The Board acknowledges the Veteran's contentions that he is unable to work due to his service-connected lumbar spine disability since 2004. However, the most probative medical evidence of record does not support these contentions. Lay persons can attest to factual matters of which they had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Here, the Veteran described his limitations caused by his service-connected disability, and the Board acknowledges that his statement in that regard is competent and of some probative value. Consequently, the Board ultimately places more weight on the negative medical evidence regarding whether the Veteran is unemployable due solely to service-connected conditions. The Board finds that the most probative medical evidence of record on the matter is against a finding that the Veteran is unemployable due to his service-connected disabilities so as to warrant entitlement to TDIU on an extraschedular basis. In summary, the Board finds that prior to May 19, 2012, the weight of the lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disorders or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected lumbar spine disability, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. While the Board does not doubt that the Veteran's service-connected lumbar spine disability does have a significant effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated with the 20 percent rating which is currently assigned for the period prior to May 19, 2012. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, the Board finds that the Director's determination to denied TDIU based on extra-schedular considerations was correct for the period prior to May 19, 2012. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b) (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation of 20 percent, and not higher, for period prior to December 17, 2010 for lumbar spine disability, is granted. Entitlement to an evaluation in excess of 20 percent for the period from December 17, 2010 to May 18, 2012, for lumbar spine disability, is denied. Entitlement to an award of TDIU on an extraschedular basis prior to May 19, 2012, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs