Citation Nr: 1601284 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 07-29 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 5, 2014. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from April 1971 to April 1979 and from September 1981 to October 1993. This appeal to the Board of Veterans' Appeals (Board) is from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of this appeal, a December 2007 RO decision increased the initial rating for the Veteran's low back disability from 10 percent to 20 percent. As the higher rating does not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, during the pendency of this appeal, the Veteran filed an application for increased compensation based on unemployability duty to low back and psychiatry disabilities in July 2014. The RO granted entitlement to TDIU effective May 5, 2014, due to service connected disabilities. Therefore, the Board finds that entitlement to TDIU prior to May 5, 2014, is properly before the Board as part and parcel to the Veteran's claim for a higher initial rating for his service-connected low back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter was previously remanded in December 2009. The Veteran initially requested a hearing at the RO before a Veterans Law Judge of the Board, but subsequently withdrew that request in writing in February 2008. 38 C.F.R. § 20.704(e) (2015). FINDINGS OF FACT 1. The Veteran's low back disability was manifest by pain and forward flexion limited to 60 degrees. Thoracolumbar spine forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine was not shown, and no incapacitating episodes were noted. 2. As of March 19, 3013, service connection was in effect for a low back disability rated 20 percent; major depressive disorder rated 50 percent; left lower extremity radiculopathy rated 20 percent; and right lower extremity radiculopathy rated 10 percent disabling for a combined rating of 70 percent which met the schedular percentage criteria for consideration of TDIU. The probative evidence shows that as of March 19, 2013, the Veteran's service-connected disabilities were of such severity to preclude substantially gainful employment. 3. Prior to March 19, 2013, service connection was in effect for a low back disability rated 20 percent; and left lower extremity radiculopathy rated 10 percent disabling for a combined rating of 30 percent rating, which does not meet the schedular percentage criteria for consideration of TDIU. The probative evidence shows that prior to March 19, 2013, the Veteran's service connected low back disability and left lower extremity radiculopathy were not of such severity to precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability have not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Codes 5243 (2015). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a TDIU were met effective March 19, 2013, but not earlier. 38 U.S.C.A §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). 3. The criteria for TDIU prior to March 19, 2013, were not met. 38 U.S.C.A §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letters dated in March 2006 and March 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the August 2015 rating decision. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, or other available evidence. VA has obtained examinations in February 2006, October 2007, April 2010, April 2014, and August 2015. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2015). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2015). It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). In deciding this appeal, the Board has considered whether separate ratings are warranted for different periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Low Back Disability The Veteran asserts that the symptoms of his low back disability warrant an initial rating in excess of 20 percent. Schedular ratings for disabilities of the spine are provided by application of The General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2015). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a (2015). The General Formula provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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 of the height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). Ankylosis is defined as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5) (2015). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1) (2015). Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2) (2015). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two week but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2015). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. 38 C.F.R. § 4.40 (2015). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2015). Factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.45 (2015). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2015). Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). The RO has rated the Veteran's back disability under Diagnostic Code 5243 for intervertebral disc syndrome. Other disabilities of the lumbosacral spine are also rated using the General Formula or Intervertebral Disc Formula, so the rating criteria are the same. Diagnostic Code 5003 also provides ratings for arthritis. 38 C.F.R. § 4.71a (2015). Diagnostic Code 5003 directs the rater to first determine if a rating is warranted under the criteria for rating limitation of motion and provides that if the amount of limitation of motion is noncompensable under the criteria for the affected joint then the minimum rating for the affected joint is to be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015). The evidence shows that there is not involvement of degenerative arthritis of two or more major joints or groups of minor joints as shown by X-ray evidence. Also, a rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion. Therefore, no higher or separate rating is warranted pursuant to Diagnostic Code 5003. The Veteran has been assigned an initial 20 percent rating for the service connected low back disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5243 (2015). A February 2005 VA spine examination report shows that the Veteran reported low back pain located at the thoracolumbar junction with no radiation to the lower extremities. He reported flare ups of the pain that were moderate to severe as often as every day that lasted two to three hours. The Veteran reported no other symptoms such as weakness, numbness, rectal or bladder dysfunction, or erectile dysfunction. The examiner reported that the Veteran walked into the examination room with no assistive devices. He reported that he had been provided with a lumbosacral support that he did not wear at the time of the evaluation. The Veteran reported that he was unable to walk more than two to four hours per day before he had to rest. He also reported that he was only able to walk for two blocks at a time before he needed rest and could only drive for short periods due to the low back pain. The Veteran did not report any periods of incapacitation within the past 12 months. Physical evaluation of the spine showed a straight appearance with no evidence of an antalgic posture. Palpation showed muscle spasticity at the level of the thoracolumbar and lumbosacral junction affecting the paravertebral muscles. Range of motion testing of the thoracolumbar spine showed forward flexion to 90 degrees with pain, extension to 20 degrees with pain, right rotation to 30 degrees with pain, left rotation to 30 degrees with pain, right bending to 30 degrees with pain, and left bending to 30 degrees with pain. The examiner noted that the Veteran exhibited no additional decrease in the range of motion after repetitive use testing. No evidence of any ankylosis of the thoracolumbar spine was noted. The examiner diagnosed low back syndrome and discogenic disease. An October 2007 VA spine examination report shows that the Veteran reported experiencing low back pain. He denied bowel or bladder incontinence. The Veteran reported experiencing sharp and dull pains that were constant and radiated down the left lower extremity to the toes. He also reported twelve episodes of incapacitating back pain in the last year that required two days of bed rest. The examiner noted that the Veteran displayed no functional limitations on standing or walking entering the examination area. His lower back was observed with a normal clinical contour. No swelling was noted. The examiner reported moderate paraspinal muscle spasms from the L4-S1 with pain to palpation over the L5-S1 interspace. Combined forward flexion of the thoracolumbar spine was 40/90 degrees, side bending 10/30 degrees, lateral rotation 10/30 degrees, and extension 10/30 degrees. An x-ray showed severe L5-S1 lumbar degenerative disc disease. The examiner reported that the Veteran was placed on a treadmill at a 1.2 miles per hour walk rate but that was too brisk for the Veteran. The treadmill test had to be discontinued after 1 minute and 50 seconds due to the Veteran's complaint of low back pain. The examiner noted that a reexamination of the Veteran's low back showed increased spasticity but not further loss in range of motion. The examiner remarked that the Veteran's lumbar degenerative disc disease with moderate mechanical low back pain would cause difficulty with standing for protracted periods of time, walking long distances, and any type of bending, stooping, or lifting would aggravate his low back. An April 2010 VA spine examination report shows that the Veteran reported that his low back condition had worsened as he experienced difficulty sleeping, pain that caused him to be housebound, and difficulty driving due to a decreased feeling in his leg. The examiner reported that the Veteran did not have a history of urinary incontinence, urinary urgency, urinary frequency, or fecal incontinence. Numbness, erectile dysfunction, and paresthesias were all reported. The examiner noted that numbness and paresthesias were due to the back condition. The examiner also reported that the erectile dysfunction was of an unclear etiology. Symptoms of the low back condition were noted as fatigue, decreased motion, stiffness, weakness, spasms, and pain. The Veteran reported lower back pain that was gnawing, radiating, and throbbing. The Veteran described the pain as moderate to severe with a constant duration. The Veteran reported flare-ups that occurred weekly lasting one to two days. The Veteran treated flare ups with bed rest and medication. The examiner reported that an impression of the extent of additional limitation of motion during flare-ups could not be provided as the Veteran did not have a flare-up during the examination. During flare-ups, the examiner reported that the Veteran experienced difficulty with walking and activities of daily living. No incapacitating episodes were reported. The Veteran was noted to use a cane, but was unable to walk more than a few yards. Physical examination of the spine showed a normal posture, head position, and symmetry. The Veteran's gait was noted to be antalgic with a slight waddle. The examiner reported no abnormal spinal curvatures or ankylosis of the thoracolumbar spine. The examiner noted that the Veteran displayed pain with motion and tenderness of the thoracolumbar spine, but no spasms or guarding were noted. The tenderness was also noted not to be severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion examination for the thoracolumbar spine showed forward flexion 0 to 70 degrees, extension 0 to 20 degrees, left lateral flexion 0 to 15 degrees, right lateral flexion 0 to 20 degrees, left lateral rotation 0 to 30 degrees, and right lateral rotation 0 to 30 degrees. Range of motion after repetitive used showed decreased range of motion, noted as forward flexion 0 to 60 degrees, extension 0 to 20 degrees, left lateral flexion 0 to 10 degrees, right lateral flexion 0 to 20 degrees, left lateral rotation 0 to 30 degrees, and right lateral rotation 0 to 30 degrees. Range of motion results were reported to be abnormal by the examiner. The examiner diagnosed degenerative disc disease of the lumbosacral spine with significant effects of increased absenteeism. The examiner reported that the Veteran's lumbar spine condition caused decreased mobility, problems with lifting and carrying, weakness, and fatigue. The examiner remarked that the occupational effects of the disability were that the Veteran could not perform his duties. Effects on usual daily activities were severe for chores, shopping, recreation, and traveling. The disability prevented exercise and sports. An April 2014 VA thoracolumbar spine examination report shows that the Veteran was diagnosed with intervertebral disc syndrome with degenerative disc disease of the lumbar spine. The Veteran reported that since his last VA examination he experienced more pain with more muscle spasms affecting his back. He reported that he was more likely to fall and had fallen once a month over the last 12 months. He reported constant achy pain to the low back with flare ups occurring three to four days per week lasting two to three minutes. He reported that had a decreased capacity to walk or bend due to flare-ups. Range of motion testing showed forward flexion of the thoracolumbar spine from 0 to 60 degrees with no pain, extension to 15 degrees with pain, right and left lateral flexion to 15 degrees with pain noted with left lateral flexion, right lateral rotation to 15 degrees with pain, and left lateral rotation to 15 degrees with no pain. The examiner reported that repetitive use testing was accomplished with no additional limitation of motion shown. Functional impairment of the spine was noted as less movement than normal; pain on movement; disturbance of locomotion; interference with sitting, standing, and/or weight-bearing; and lack of endurance. The examiner reported no localized tenderness or pain to palpation of the thoracolumbar spine. No muscles spams of the spine were noted. No ankylosis of the spine was diagnosed. The Veteran was diagnosed with radiculopathy of the lower extremities but no other neurological impairments were noted. The examiner reported that the Veteran had intervertebral disc syndrome with incapacitating episodes over the last 12 months. An August 2015 VA spine examination report shows that the Veteran was diagnosed with degenerative disc disease of the L5-S1. The Veteran reported that since his last VA examination his back had been the same. He reported experiencing less left leg sciatica although he still had issues. The Veteran reported no flare-ups of the thoracolumbar spine. Range of motion testing showed forward flexion 0 to 70 degrees, extension 0 to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that the range of motion was abnormal but did not contribute to functional loss. Pain was noted on examination that was the cause of functional loss. The Veteran reported diffused pain in the back area. Repetitive use testing was performed with no additional loss of function or range of motion after three repetitions. The examiner reported that pain, weakness, fatigability, or incoordination that caused significant limitations with functional ability with repeated use over time could not be ascertained without mere speculations. The examiner noted that the Veteran had pain that was difficult to discern what was hurting him. The Veteran was noted to have significant deconditioning of his back. The Veteran was observed to have guarding or muscle spasms of the thoracolumbar spine that resulted in an abnormal gait or abnormal spinal contour. The examiner reported that the Veteran had no ankylosis of the spine. The Veteran did have radiculopathy of the lower extremities that were service connected but he did not have any other neurological abnormalities or findings. Intervertebral disc syndrome was not diagnosed, although the examiner noted that a previous diagnosis could not be confirmed from the current examination. The Veteran was observed to use a cane for stability. X-rays showed that the Veteran did not have arthritis of the spine. The examiner remarked that the Veteran's thoracolumbar spine condition could impact the Veteran's ability to work as his decreased conditioning would affect his ability to stand or walk longer periods and bending. Based on the evidence of record, the Board finds that the Veteran's low back disability does not warrant a rating in excess of 20 percent as during any period on appeal. The range of motion testing results noted in the VA examination reports show that the Veteran was limited by pain in forward flexion of the thoracolumbar spine at worst to 60 degrees as noted during the April 2010 VA examination. Notably, the Veteran's forward flexion of the lumbar spine has exceeded 30 degrees on all occasions and not been shown to be limited to 30 degrees or less by any other factors. Also, VA examiners have specifically reported that the Veteran's lumbar spine showed no ankylosis. Therefore, the lumbar spine disability does not meet any of the criteria for a higher 40 percent rating during the entire pendency of the appeal, even accounting for additional functional limitation due to factors such as pain, weakness, fatigability, or loss of endurance. Additionally, there was no evidence of lumbar spine ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5243 (2015). The Board notes that the additional limitation the Veteran experiences due to pain on repetition was accounted for by the VA examiners when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45 (2015). There is no other evidence showing that the Veteran has more limitation of motion than that found at the VA examinations. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 20 percent for functional impairment of the lumbar. Consideration has also been given to assigning higher rating under Diagnostic Code 5243, for degenerative disc disease based on incapacitating episodes rather than limitation of motion. However, there is no indication that the Veteran experienced incapacitating episodes requiring medically prescribed bed rest having a total duration of at least four weeks but less than six weeks during a 12 month period during the entire course of the appeal. Therefore, a rating in excess of 20 percent rating based on incapacitating episodes is not warranted. 38 C.F.R. § 4.71a (2015). Consideration has been given to assigning a separate compensable rating for neurological impairment in the lower extremities or other neurological abnormalities related to the low back disability such as bowel or bladder incontinence. The Board notes that the Veteran has already been granted service connection for radiculopathy of the lower extremities secondary to the low back disability. Additionally, the Veteran has not been assessed with bowel or bladder incontinence due to his low back disability. Therefore, a separate rating for any other neurological impairments, to include bowel and bladder problems associated with a lumbar spine disability, is not warranted. Therefore, the Board finds that a rating in excess of 20 percent for the Veteran's low back disability is not warranted, and the preponderance of the evidence is against an assignment of a higher rating. 38 C.F.R. §§ 4.71a, Diagnostic Code 5243 (2015). In exceptional cases where the schedular rating is inadequate, VA regulations provide that the Under Secretary for Benefits or the Director, Compensation and Pension Service, may approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1) (2015); Barringer v. Peake, 22 Vet. App. 242 (2008) (issue of an extra-schedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by a Veteran or reasonably raised by record). A Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the rating of the individual disabilities fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In determining whether an extra-schedular rating is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2015); Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the schedular ratings for the service-connected disabilities addressed in this decision are not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disability are congruent with the disability picture represented by the disability ratings assigned. The criteria for the ratings assigned reasonably describe the Veteran's disability level and symptomatology for these specific disabilities and the criteria for higher alternative ratings have been discussed. Therefore, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The Veteran has reported pain, fatigue, limited range of motion, and numbness with regards to his service connected disabilities. In short, the Board finds nothing exceptional or unusual about the Veteran's specific low back and lower extremity radiculopathy disabilities because the rating criteria reasonably describe his disability level and symptomatology. 38 C.F.R. § 3.321(b)(1) (2015); Thun v. Peake, 22 Vet. App. 111 (2008). Additionally, the Board notes that the Veteran has been awarded individual unemployability as of March 19, 2013. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2015). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015). TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2015). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2015). Prior to May 5, 2014 The Board notes that the Veteran met the minimum percentage requirements of 38 C.F.R. § 4.16(a) as of March 19, 2013, with a combined disability rating of 70 percent. The combined rating was a result of a 50 percent rating for major depressive disorder, a 20 percent rating for a low back disability, a 20 percent rating for left lower extremity radiculopathy, and a 10 percent rating for right lower extremity radiculopathy. Here, the Board finds that TDIU is warranted as of March 19, 2013, the date he met the schedular requirements of 38 C.F.R. § 4.16(a), as it is clear that the symptomatology of his service connected disabilities was essentially the same as shown in an August 2015 VA examination report that determined the Veteran's disabilities made him unemployable. The Board finds no differentiation between those psychiatric and musculoskeletal symptoms noted in examination reports in August 2015, then those the Veteran experienced as of March 19, 2013. Therefore, the Board finds that a TDIU is warranted as of March 19, 2013. The Board resolves all reasonable doubt in favor of the Veteran based on the assignment of a 70 percent combined rating for major depressive disorder, low back disability, and left and right lower extremity radiculopathy made him unable to secure or follow a substantially gainful employment as of March 19, 2013, but not earlier. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to March 19, 2013 Prior to March 19, 2013, service connection was in effect for a low back disability rated 20 percent, and left lower extremity radiculopathy rated 10 percent, for a combined rating of 30 percent. Thus, the Veteran did not meet the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for consideration of a TDIU. However, TDIU may nonetheless be granted, in exceptional cases, pursuant to specifically prescribed procedures, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2015). Therefore, consideration of whether the Veteran was, in fact, unemployable prior to March 19, 2013, is necessary. The Board does not doubt that the Veteran's service-connected low back disability and left lower extremity radiculopathy caused occupational impairment prior to March 19, 2013. However, the Board finds that the greater weight of the probative evidence is against finding that the Veteran was unable to secure and follow a substantially gainful occupation solely by reason of the service-connected low back disability and left lower extremity radiculopathy for the period prior to March 19, 2013. No other disabilities were service-connected prior to March 19, 2013. The Board notes that the evidence prior to March 19, 2013 shows that the Veteran reported his last day of employment was in January 2007 as noted in a VA Form 21-4192 submitted by the his former employer in June 2015. The Veteran's former employer noted that the Veteran's previous occupation was as a ship inspector and that his employment ended due to lack of work available. An October 2007 VA examiner opined that the Veteran's lumbar degenerative disc disease with moderate mechanical low back pain would cause difficulty with standing for protracted periods of time, walking long distances, and any type of bending, stooping, of lifting would aggravate his low back. An April 2010 VA examiner opined that the Veteran's occupational effects of the disability were that the Veteran could not perform his duties. The Board has fully considered the nature of the Veteran's low back disability and left lower extremity radiculopathy, as reported by the Veteran and as shown by the objective medical evidence prior to March 19, 2013. The Board notes that the Veteran is a high school graduate and left his job as a ship inspector not because of physical ailments, but due to the unavailability of work. Additionally, the Veteran reported that he was unable to work due to his back and depression. The Board notes that the Veteran's has been grated TDIU on the effective date of service connection for a psychiatric disability which was March 19, 2013. Prior to March 2013 the Veteran was not service connected for depression, and depression cannot be considered in determining entitlement to TDIU. Therefore, the question before the Board is whether service-connected disabilities alone rendered him unemployable prior to March 19, 2013. The Board finds that the Veteran's reported manifestations and VA examination evidence are probative on the issue that TDIU was not warranted for the period prior to March 19, 2013. Moreover, while the service-connected low back disability and left lower extremity radiculopathy may have caused some economic inadaptability that is taken into account in the assigned rating for the period prior to March 19, 2013. While the evidence clearly indicates that he would be precluded from a physically demanding position as remarked upon by the October 2007 and April 2010 VA examiners, there was no evidence in those reports or in the medical evidence to show that he was unemployable as to gainful sedentary employment after he lost his previous job in January 2007 through March 2013. While the back disability prevented the Veteran from performing his duties as a ship inspector, the evidence does not show it prevented him from sedentary employment. In this case, the Board finds that the preponderance of the evidence is against a finding of total individual unemployability based solely on his service-connected low back disability and left lower extremity radiculopathy prior to March 19, 2013. 38 C.F.R. § 4.1 (2015). The preponderance of the medical evidence shows that the Veteran's service-connected low back disability and left lower extremity alone, did not make him unable to secure or follow a substantially gainful occupation prior to March 19, 2013. 38 C.F.R. § 4.16(b) (2015). Accordingly, the Board finds that entitlement to a TDIU prior to March 19, 2013 is not warranted. The preponderance of the evidence is against that claim, which must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 20 percent for a low back disability is denied. Entitlement to a TDIU as of March 19, 2013 is granted. Entitlement to a TDIU prior to March 19, 2013 is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs