Citation Nr: 1603345 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-24 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus. 2. Entitlement to service connection for a foot disability other than bilateral pes planus. 3. Entitlement to service connection for left eye disability. 4. Entitlement to service connection for osteoporosis. 5. Entitlement to a rating in excess of 20 percent for lumbosacral strain. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2011 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The April 2011 rating decision, in pertinent part, continued a 20 percent rating for lumbosacral strain and denied entitlement to a TDIU. The August 2014 rating decision denied service connection for left eye blindness and osteoporosis, and reopened the previously denied claim of service connection for bilateral pes planus and denied service connection for a foot pain disability. However, with regard to the reopened claim, the question of whether new and material evidence has been received to reopen the claims of service connection for bilateral pes planus must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). Further, as the Veteran has been diagnosed with other foot disabilities, including hallux valgus, degenerative arthritis, and old healed fracture of right 5th metatarsal, the Board has considered these claims de novo. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has recharacterized the claims as shown above. FINDINGS OF FACT 1. An October 1972 Board decision denied the Veteran service connection for pes planus, based on findings that pes planus clearly and unmistakably preexisted service and there was no increase in the preservice level of the disability during the Veteran's active duty service. 2. Evidence received since the October 1972 Board decision does not relate to unestablished facts necessary to substantiate the claims of service connection for bilateral pes planus and does not raise a reasonable possibility of substantiating such claims. 3. A foot disability other than pes planus was not manifested in, and is not shown to be related to the Veteran's service. 4. A left eye disability was not manifested in, and is not shown to be related to the Veteran's service. 5. Osteoporosis was not manifested in, and is not shown to be related to the Veteran's service. 6. The Veteran's lumbosacral strain disability has not been shown to be productive of forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine. 7. The Veteran is service-connected for lumbosacral strain, rated 10 percent, right lower extremity sciatica, rated 0 percent and left lower extremity sciatica rated 10 percent from January 2004 and 0 percent from December 2015. For a combined rating of 30 percent from January 2004 and 20 percent from December 2015. He has no other service-connected disabilities. His service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claims of service connection for bilateral pes planus are not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2015). 2. Service connection for a foot disability other than pes planus, and to include hallux valgus, degenerative arthritis, and residuals of a right 5th metatarsal fracture, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 3. Service connection for left eye disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 4. Service connection for osteoporosis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 5. A rating in excess of 20 percent for the Veteran's service-connected lumbosacral strain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (Code) 5237 (2015). 6. The criteria for an award of a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. Regarding whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus, by correspondence dated in May 2014 (prior to the initial unfavorable August 2014 rating decision), VA notified the Veteran of the prior denial of the claim and the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). The May 2014 letter informed the Veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. It also stated that new and material evidence must be submitted which addresses the reason why the claim was previously denied in order for the claim to be reopened. VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in May 2014 (prior to the initial unfavorable August 2014 rating decision), VA notified the Veteran of the information needed to substantiate and complete his service connection claims, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided pre-adjudication VCAA notice in a letter dated in May 2008. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. Regarding the service connection claims for left eye disability and osteoporosis, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims has stated that this is a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination for left eye disability and osteoporosis is not necessary, as there is no evidence suggesting there may be a nexus between any such current disability and the Veteran's active duty service. Furthermore, as this decision denies service connection for left eye disability and osteoporosis (and because there is no indication that left eye disability and osteoporosis may otherwise be related to the Veteran's service), the low threshold requirement of McLendon is not met, and an examination to secure a nexus opinion is not necessary. Moreover, the Court has held that the adequacy of an examination or opinion is moot if the Board determines that new and material evidence has not been presented. See Woehlaert v. Nicholson, 21 Vet App 456, 463-64 (2007). Of course, the Board must still consider the results of such an examination or opinion as it would any evidence of record. See id. Accordingly, because the Board finds that new and material evidence has not been submitted, the adequacy of the July 2014 VA examination of the feet is moot. Regarding the increased rating claim, the RO arranged for VA examination in November 2008, March 2010, September 2010, February 2011 and October 2014, which will be discussed in greater detail below. The Board finds these examinations, cumulatively, to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Petition to Reopen An October 1972 Board decision denied the Veteran service connection for pes planus on the basis that pes planus clearly and unmistakably preexisted service and there was no increase in the preservice level of the disability during the Veteran's active duty. That decision is final. 38 U.S.C.A. § 7104. When there is a final AOJ or Board denial on a claim of service connection, such claim may not be reconsidered, and allowed based on the same evidence as considered in the final decision. See 38 U.S.C.A. §§ 7104, 7105. However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim may be reopened and considered de novo. New evidence is existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has endorsed a liberal interpretation of the phrase "raises a reasonable possibility of establishing the claim", indicating it must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, credibility of the new evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The evidence of record at the time of the October 1972 Board decision includes the Veteran's service treatment records and the November 1967 Report of Medical Examination at separation, which notes mild pes planus on clinical evaluation and the medical history report that notes he had foot trouble. (Notably, there is no service entrance examination of record therefore pes planus was not noted on entry into service.) Other evidence of record at that time includes a January 1972 VA medical examination that diagnosed 3rd degree pes planus. Pertinent evidence received since the October 1972 Board decision includes the Veteran's October 2011 and June 2014 statements in support of his claim, reiterating his 1972 contentions that he had pain of the feet in basic training, that he sought treatment, and that he was given arch supports for his boots. A September 1998 VA examination notes the Veteran reported pain in the plantar surfaces of the feet and that he has inserts for his shoe, which he got while he was in the military, but does not use them because they are worn out. During a July 2014 VA examination of the feet, the Veteran reported that he had had flat feet since childhood. The examiner opined that the Veteran's flat feet preexisted service. In a February 2015 VA outpatient treatment note, the Veteran reported a history of flat feet pain. He described a constant aching, burning and pressure-type pain. The Board finds that some if the evidence, i.e., portions of the Veteran's statements, are cumulative and redundant of his statements at the time of the 1972 denial. To the extent that any of the additional evidence is new, such evidence does not tend to show that his pes planus began in service or, if preexisting, was aggravated by service. The new evidence therefore does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. Accordingly, the new evidence received is not new and material, and the claim of service connection for bilateral pes planus is not reopened. Service Connection Claims Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Foot Disability other than Pes Planus The Veteran essentially contends that he has a foot disability related to service. His STRs are silent for any complaints, treatment, or diagnosis related to a foot disability other than pes planus. Only pes planus was noted on his November 1967 separation examination with respect to the feet. The July 2014 VA examination report diagnosed hallux valgus, degenerative arthritis, and old healed fracture of right 5th metatarsal. The Veteran has not submitted any medical evidence demonstrating that foot disability other than pes planus, first manifested decades after service, is related to service. His assertion that a foot disability is related to service is not competent evidence in this matter. Laypersons are competent to provide opinions on some medical issues. However, the etiology of a foot disability (other than pes planus) falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the preponderance of the evidence of record establishes that the Veteran's diagnosed foot disabilities other than pes planus, including hallux valgus, degenerative arthritis, and old healed fracture of right 5th metatarsal, became manifest years after, and are not shown to be related to his service. Accordingly, the preponderance of the evidence is against the claim of service connection for a foot disability other than pes planus. Left Eye Disability The Veteran essentially contends that he has a left eye disability related to service. His STRs are silent for any complaints, treatment, or diagnosis related to a left eye disability. On his November 1967 separation examination, the eyes, ophthalmoscopic, pupils and ocular motility were normal on clinical evaluation and visual acuity in both eyes was 20/20. On an associated report of medical history, he specifically denied having eye trouble. VA treatment records reflect the Veteran has been diagnosed with primary open -angle glaucoma (POAG). An April 2013 VA ophthalmology outpatient note diagnosed severe POAG. A March 2014 VA ophthalmology outpatient clinic note diagnosed POAG. In April 2014 he underwent left eye surgery, a trabeculectomy with express shunt and mitomycin-C and cataract extraction with intraocular lens, left eye. The postoperative diagnoses were POAG, severe stage glaucoma and cataract, left eye. A February 2015 VA ophthalmology clinic report shows his left eye had severe impaired visual acuity, such that he was only able to count fingers held at a distance of one foot. The Veteran has not submitted any medical evidence demonstrating that a left eye disability, which was manifested decades after service, is related to service. His assertion that a left eye disability is related to service is not competent evidence in this matter. Laypersons are competent to provide opinions on some medical issues. However, the etiology of a left eye disability falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the preponderance of the evidence of record establishes that the Veteran's left eye disability became manifest years after, and is not shown to be related to his service. Accordingly, the preponderance of the evidence is against the claim of service connection for left eye disability. Osteoporosis The Veteran contends that he has osteoporosis related to service. STRs are silent for any complaints, treatment, or diagnosis related to osteoporosis. On his November 1967 separation examination, his musculoskeletal was normal on clinical evaluation; and on the associated report of medical history, he specifically denied having bone, joint, or other deformity or lameness. In June 2010 the Veteran was seen by his VA primary care provider for follow-up for chronic medical problems. He was given an assessment of osteoporosis, vitamin D improved. On September 2010 VA general medical examination, the examiner noted that through medical record review, the Veteran had a bone scan, which revealed osteoporosis. He was followed by his primary care provider and diagnosed with osteoporosis. It was noted that osteoporosis does affect his ability to function in a manual labor job due to decreased bone loss, but does not affect his ability to function in a sedentary job. Osteoporosis was also diagnosed in a January 2011 VA primary care note. December 2012 x-rays (December 2012 VA knee and lower leg conditions examination report) revealed osteoporosis. The examiner noted that the Veteran's diagnosis of osteoporosis predisposes him to degenerative joint and bone disease. The Veteran has not submitted any medical evidence demonstrating that osteoporosis, which was manifested decades after service, is related to service. The Veteran's assertions that osteoporosis is related to service is not competent evidence in this matter. Laypersons are competent to provide opinions on some medical issues. However, the etiology of osteoporosis falls outside the realm of common knowledge of a layperson. See Kahana, 24 Vet. App. 428; see Jandreau, 492 F.3d at 1377 n.4. In summary, the preponderance of the evidence of record establishes that the Veteran's osteoporosis became manifest years after, and is not shown to be related to his service. Accordingly, the preponderance of the evidence is against the claim of service connection for osteoporosis. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbosacral strain has been rated under Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine, which provides that a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or, for 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. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Code 5243, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5243, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5243, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Code 5243, Note (5). The Board notes that low back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, but for reasons discussed further below, the evidence does not suggest, nor does the Veteran contend, that he currently suffers from IVDS. Therefore, that rating criteria is not applicable to the instant claim. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In March 2008, the Veteran filed a claim for an increased rating for his service-connected lumbosacral strain disability essentially claiming an increase in severity of symptoms. VA examinations and clinical records throughout the period of claim have documented his ongoing symptoms and treatment for low back pain. On November 2008 VA spine examination, he reported the history of his low back injury, stating that he was in a motor vehicle accident (MVA) in 1966. Since his last VA examination in 2004 his lower back continued to hurt. He denied any additional injury, trauma or surgery since the 1966 MVA. He had no history of hospitalization, surgery, or neoplasm. There was no history of urinary incontinence, urgency, retention requiring catheterization, or frequency, and no nocturia. There was no fecal incontinence, obstipation, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, visual dysfunction or dizziness. He described symptoms of decreased motion, stiffness, and spasms. There was no fatigue or weakness. He complained of lumbosacral spine pain of moderate severity that was constant and occurred on a daily basis. There was no radiation of pain. He reported having severe flares-ups, daily. During flare-ups, he cannot do anything until the pain subsides. He used a cane; he was unable to walk more than a few yards. On physical examination there were spasms, pain with motion and tenderness. There was no weakness, atrophy or guarding. His gait was antalgic with poor propulsion. There were no abnormal spinal curvatures. Reflex examination was normal. There was no thoracolumbar spine ankylosis. On range of motion testing, flexion was to 90 degrees (pain began at 85 degrees and ended at 90 degrees); extension was to 30 degrees (pain began at 25 degrees and ended at 30 degrees); right and left lateral flexion and rotation were to 30 degrees (pain began at 25 degrees and ended at 30 degrees). There was pain on motion of the thoracolumbar spine. There was objective evidence of facial grimacing and clinching of fist and teeth. There was an increase in pain, weakness, fatigue and lack of endurance after 3 repetitive motions. There was no incoordination after 3 repetitive motions. There was 0 degree loss of range of motion after 3 repetitive motions. The Veteran was unable to walk on his toes, heels and tandem walk. In the past 12 months he had not had any episodes of incapacitation or of being bedridden. Deep tendon reflexes in the upper and lower extremities were normal, and motor strength was normal. X-rays of the lumbar spine revealed degenerative disc space narrowing and mild retrolisthesis at the lumbosacral disc space. There was loss of the normal lumbar lordosis. The impressions were degenerative disc narrowing L5-S1, loss of lumbar lordosis, mild retrolisthesis L5 on S1 and very limited examination. The diagnosis was degenerative disc disease (DDD) of the thoracolumbar spine. He was not employed, and his usual daily activities were moderate to severely affected. On March 2010 VA spine examination, the Veteran reported having lumbar spine pain that he rated 10/10. The known injury was a motor vehicle collision in 1966. The pain was constant, the duration was chronic and it was sharp. He denied radiation of pain. He had pain instantly with standing and walking. He reported he was a truck driver and had difficulty lifting and bending. He was able to feed, groom, and toilet himself without difficulty. He reported he had to have assistance with bathing and dressing, and he could no longer drive. He reported he had difficulty ambulating around his house and doing any tasks that required bending. He reported he could no longer participate in recreational activities, which he did in the past, such as basketball and football. He denied flare-ups; his pain was chronic and constant and always 10/10. He had stiffness, fatigue, weakness, decrease in motion, numbness, and paresthesia. He denied any bowel or bladder complaints. He reported a history of erectile dysfunction. He was unable to walk unaided; he used a "J-cane[;]" but was in a wheelchair at the examination. He did not have a back brace. He reported he is unsteady on his feet, but denied a history of falls. He denied any other trauma or injury, hospitalizations or surgeries pertaining to his spine. He denied a history of neoplasm at the time. He had a bone scan which revealed osteoporosis. On physical examination his spine was symmetrical in appearance. Muscle use of the back was antalgic and stiff. He had a normal curvature of the cervical, thoracic, and lumbar spine. He had a stooped posture. He was unable to perform propulsion on his toes or heels. Upon palpation of his spine, he had tenderness to his lumbosacral region. Range of motion of the thoracolumbar spine revealed forward flexion to 25 degrees, with repetitive movement times 3 to 20 degrees with a 5 degree loss of range of motion. Extension was to 12 degrees, with repetitive movement times 3 to 15 degrees with 5-degree loss of range of motion. Left lateral flexion was to 15 degrees, with repetitive movement times 3 to 12 degrees with a 3 degree loss of range of motion. Right lateral flexion was to 20 degrees with repetitive movement times 3 to 15 degrees with a 5-degree loss of range of motion. Left and right lateral rotation was to 30 degrees with repetitive movement times 3 to 30 degrees with a 0 degree loss of range of motion. He was additionally limited on repetitious activity primarily by pain, then weakness. He was not additionally limited by fatigability, lack of endurance or incoordination. He did exhibit evidence of tenderness, pain and weakness due to the presence of facial grimacing and moaning on examination. There was no muscle spasm. Neurological examination revealed he had appropriate vibration sensation to the bilateral lower and upper extremities. Motor strength was 5/5 to his bilateral upper and lower extremities. Deep tendon reflexes: biceps, triceps, patellar, and Achilles were normal bilaterally with a negative clonus. Rectal examination revealed an intact sphincter tone. Straight leg rising to the bilateral lower extremities was to 25 degrees with pain noted at 20 degrees. He had not had an episode of intervertebral disk syndrome in the past 12 months that required prescribed bedrest or treatment by a physician. X-rays of the lumbosacral spine showed degenerative disc space narrowing at L5-S1, degenerative spurring at L4-5, and arterial sclerotic calcifications of the abdominal aorta. The diagnosis was degenerative disc space narrowing at L5-S1, and degenerative spurring at L4-5. On September 2010 VA general medical examination, the Veteran reported the 1966 MVA when he injured his low back; and stated that lumbar spine pain has been constant in progressive symptoms. He noted that pain of his lumbar spine was 10/10. It was constant and the duration chronic; the pain was sharp. He denied radiation of pain. He was unable to identify aggravating factors at that time. He identified alleviating factors as lying down and over-the-counter Tylenol which he took by mouth every 4- 6 hours as needed for pain. He had pain instantly in standing and walking. He worked as a truck driver and had difficulty lifting and bending. At the time of the examination, he was able to feed, groom, and toilet himself without difficulty. He reported he has to have assistance with bathing, and dressing, and he can no longer drive. He reports he had difficulty ambulating around his house and doing any tasks that require bending. He reports he can no longer participate in recreational activities in which he participated in the past, such as basketball and football. He denied flare-ups, as he stated his pain is chronic and constant and always at 10/10. The Veteran subjectively admits to having stiffness, fatigue, weakness, decrease in motion, numbness, and paresthesia. He denied any bowel or bladder complaints. He reported a history of erectile dysfunction. He was unable to walk unaided. He used a "J-cane," however, at the examination he was in a wheelchair. He does not have a back brace. He was unsteady on his feet, but denied a history of falls. He denied any other trauma or injury pertaining to his spine. He denied any hospitalizations, surgeries or history of neoplasm pertaining to his spine. On physical examination, he had a stiff nonantalgic gait with negative Romberg. Motor strength was 5/5 of the lower extremities. There was no evidence of fractures or amputations. There was no muscle wasting or atrophy. It appears range of motion testing was not performed. X-rays of the lumbosacral spine shows degenerative disc space narrowing at L5-S1; and degenerative spurring at L4-5. Arterial sclerotic calcifications of the abdominal aorta were shown. The diagnosis was DDD space narrowing at L5-Sl with degenerative spurring at L4-L5. The examiner noted that this does affect his ability to function in a manual labor job due to decreased endurance, fatigue, decreased mobility and inability to lift and carry heavy objects, but does not affect his ability to function in a sedentary job. On February 2011 VA spine examination, the Veteran reported symptoms of decreased motion, stiffness, weakness, spasm, and pain. Pain was located in the low back area on both sides; the onset was daily without precipitating factors. The pain was sharp and of moderate severity that would last for hours daily. There was radiation of pain of both legs. There was no hospitalization, surgery, spine neoplasm, or flare-ups. There were no incapacitating episodes of spine disease. He used a cane and a brace. He was able to walk 1/4 mile. X-rays showed AP [anterior-posterior] alignment appeared grossly anatomic. Pedicles appear intact. There was normal lordotic curvature. Disc spaces and vertebral body heights appear adequately maintained. Minor marginal hypertrophic spurring at L5. The impression was minor spurring at L5. On examination he had normal posture. His gait was antalgic. There were no abnormal spinal curvatures. There was no spine ankylosis. There was no spasm, atrophy, or guarding. There was no pain with motion. There was tenderness and weakness. His tenderness was not severe enough to be responsible for abnormal gait or abnormal spinal contour. Reflex examination findings, Rhomberg, toe and heel walk, and straight leg raising were normal. Range of motion of the thoracolumbar spine was flexion to 80 degrees, extension to 25 degrees, left and right lateral flexion to 30 degrees and left and right lateral rotation to 25 degrees. There was no objective evidence of pain on active range of motion. There was no additional limitation with repetitive motion or after three repetitions. CT [computed tomography] showed mild bilateral facet degenerative joint disease at L3, L4, L5 - S1. The impression was multilevel lumbar spondylotic changes. The diagnoses were inservice lumbar strain with history of bilateral sciatica, temporary and transient condition, and lumbar spondylosis with degenerative disc disease. The Veteran's usual occupation was commercial truck driver. He had been unemployed for 10 to 20 years. He receives Social Security Administration (SSA) disability benefits for COPD. The effect on usual occupation and resulting work problems was none. There were mild effects on his usual daily activities. On October 2014 VA back examination the Veteran reported that after the military he injured his lower back while lifting 90 pound bags of cement in 1968. He received work's compensation for a lower back injury. After the work-related back injury he did not return to work. He denied other injuries to the lower back. He has not had surgery on the lower back nor has it been recommended. He has not had injections into the spine. He complained of pain across the lower back that "comes and goes." He will have some pain in the lower back daily; but he was not having lower back pain at that time. His average pain intensity level is 8/10. The pain is aggravated by getting up from sitting, bending and walking. He denied pain in the lower back interfering with sleep. The pain in the lower back does not radiate to the legs. He has numbness, burning and tingling sensation that starts in the toes and progresses upward towards the knees, which has been present for about 6 years and had remained stable. He denied bowel and bladder dysfunction. He denied flare-up of lower back pain. He has not been placed on bedrest due to the lower back disability in the last 12 months. Over the last 12 months the pain in the lower back has remained stable. Flare-ups did not impact the function of the thoracolumbar spine. On range of motion testing flexion was to 80 degrees with no objective evidence of painful motion; extension was to 25 degrees with no objective evidence of painful motion; right and left lateral flexion were each to 30 degrees with no objective evidence of painful motion; and right and left lateral rotation were each to 25 degrees with no objective evidence of painful motion. Post-test forward flexion was to 85 degrees, extension was to 20 degrees, right and left lateral flexion were each to 30 degrees, and right and left lateral rotation were each to 25 degrees. There was no additional limitation of range of motion of the thoracolumbar spine following repetitive-use testing. There was functional loss and/or functional impairment of the thoracolumbar spine. Functional loss, functional impairment and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use consist of pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing, and lack of endurance. There was no localized tenderness or pain to palpation for joints and /or soft tissue, muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour of the thoracolumbar spine. Muscle strength was normal. There was no muscle atrophy. Sensory examination was normal. Straight leg raising test was negative. There was no ankylosis of the spine. There were no other neurologic abnormalities or intervertebral disc syndrome and incapacitating episodes. He used a back brace constantly. The diagnoses were degenerative arthritis of the spine, lumbar strain (inservice condition, resolved), and lumbar spondylosis. The examiner noted that the Veteran's back disability impacted his ability to work, for example: avoidance of heavy lifting, twisting motions, prolonged sitting or standing, and activities that involve heavy vibration (such as driving large earth moving vehicles and using construction equipment such as jackhammers). Adjusting worktable height and chair height and using footrests are all beneficial for individuals with back problems, including failed fusion of the lumbar spine. The individual may require frequent breaks in order to walk, stand or stretch. The Veteran is not employed. He stated that he has not worked since 1969 other than odd jobs as a labor such as working with a demolition company. He is able to attend to all of his activities of daily living and handle his finances. He does not drive due to low vision. He states that he does not do anything. The examiner explained that there was a change in the diagnosis of the Veteran's current lumbar spine disability. He has a history of lumbar strain related to military service. This was a temporary condition that resolved. X-rays taken of the lumbar spine during military service were reported to be normal. This Patient sustained a work related injury to the lower back after military service that caused a job change. For many years after military service the lumbar spine x-rays were normal. X-rays of the lumbar spine now show degenerative changes. This is a new and separate condition and is not related to the in-service lumbar strain that resolved. His current lower back symptoms are due to the degenerative disease of the lumbar spine and not due to lumbar strain, this has resolved. The Veteran does not have sciatica; this condition has resolved. He had an electrodiagnostic study that shows bilateral lower extremity polyneuropathy. This is secondary to his long history of alcohol abuse. He does not have a lower extremity nerve condition related to the lower back condition. Regarding Mitchell criteria, the Veteran was not seen during a flare up of his lower back condition. The examiner noted that he was unable to render an opinion regarding the degree of functionality loss during a flare up without resorting to speculation. On January 2015 VA primary care note, the Veteran was seen for a follow-up. His main complaint was low back pain. There was no radiation to distal extremities. He denied trauma and there was no bowel or bladder incontinence. The pain was worse when lying down. It was noted that he continues with heavy alcohol use and has not been taking vitamin supplements regularly. On physical examination there was paraspinous spasming to the lumbar musculature and pain on flexion. The assessment was low back pain. Based on a review of the evidence, the Board finds that a higher rating for the Veteran's lumbosacral strain is not warranted as the preponderance of the evidence is against a finding that the Veteran's current back symptomatology is due to service. As noted by the 2014 VA examiner, the Veteran's nonservice-connected degenerative disease of the lumbar spine is the cause of his current low back symptoms, not his service-connected lumbar strain. At its worst the Veteran's range of motion had been limited to 25 degrees flexion and 132 degrees of combined thoracolumbar motion (see the March 2010 VA examination), which would warrant the next higher (40 percent) rating for the lumbar spine. However, the 2014 VA examiner clearly attributed the current back symptomatology, which would certainly include limited range of motion, to the nonservice-connected degenerative disease, not the Veteran's service-connected lumbosacral strain. The October 2014 VA examiner's opinion is highly probative and persuasive as the findings were supported by a rationale which addressed the evidence in the record. The examiner noted that the Veteran's service-connected lumbar strain was a temporary condition that resolved. As X-rays taken during military service and for many years thereafter were normal, the examiner found the degenerative changes were a new and separate condition unrelated to the service-connected lumbar strain. For these reasons a higher rating is not warranted at any time during the appeal. Furthermore, VA examination reports after the March 2010 VA examination (in February 2011 and October 2014), shows the Veteran actually had greater range of motion, with 80 degrees forward flexion and combined range of motion of 215. In these cases, the clinical findings are within the range of motion contemplated by the criteria for a 20 percent rating. What is required for a higher rating of 40 percent is evidence showing forward flexion of thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. From there, higher ratings of 50 percent or 100 percent are not warranted without evidence of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine, respectively. Even considering the findings of pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing, and lack of endurance, there is no basis for finding that the Veteran's service-connected lumbar strain results in additional functional loss so as to limit his thoracolumbar flexion to 30 degrees or less. Furthermore, there is nothing suggesting that the Veteran has signs of favorable or unfavorable ankylosis of the thoracolumbar spine, much less the entire spine. Therefore, a rating in excess of 20 percent is not warranted for the Veteran's service connected low back strain for any time during the appeal period. The Board has considered the fact that the Veteran was also diagnosed with bilateral lower extremity sciatica associated with his lumbosacral strain. To that end, the Board recognizes that the AOJ had already granted a separate compensable rating for the left lower extremity sciatica at 10 percent, but reduced it to 0 percent from December 2015. The right lower extremity was not assigned a compensable rating. Code 8520 for moderate impairment of the sciatic nerve. As the evidence of record does not reflect that the lower extremity sciatica more nearly approximates mild disability, a compensable rating is not warranted under Code 8520. Further, the 2014 VA examiner noted that the Veteran's sciatica had resolved and that his bilateral lower extremity polyneuropathy was due to alcohol abuse. With respect to the Veteran's claim seeking an increased "staged" rating for his service-connected lumbosacral strain, the Board finds the preponderance of the evidence is against the claim, and therefore that the benefit of the doubt rule does not apply. Accordingly, higher ratings are not warranted for his lumbosacral strain at any time during the appeal, and the appeal must be denied. Extraschedular Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis for his service-connected low back disability. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Veteran's lumbosacral strain, at most, manifests as limited motion, associated functional impairment, and neurological symptoms. The Board finds that the associated symptomatology and degree of disabilities shown are entirely contemplated by the rating schedule. The Veteran has not presented any evidence suggesting an exceptional or unusual disability picture. Therefore, referral for extraschedular consideration is not warranted. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran 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 service-connected 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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(b). The Board is precluded from granting a TDIU under § 4.16(b) in the first instance. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period, a TDIU is not warranted. The Veteran's application for increased compensation based on unemployability notes that hypertension, back and breathing [pulmonary system] prevents him from securing or following any substantially gainful occupation. The Veteran contends that he is disabled due to hypertension, back and breathing. He is service connected for lumbosacral strain; service connection has not been established for hypertension and a breathing problem. Moreover, the Veteran does not meet the threshold criteria for a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(a). He is service-connected for lumbosacral strain, rated 10 percent, right lower extremity sciatica, rated 0 percent and left lower extremity sciatica rated 10 percent from January 2004 and 0 percent from December 2015. For a combined rating of 30 percent from January 2004 and 20 percent from December 2015. He has no other service-connected disabilities. He does not have a single disability rated at 60 percent or more in the present case. The Board finds, therefore, that entitlement to a TDIU is not warranted under 38 C.F.R. § 4.16(a). Moreover, the Board finds that referral for consideration of a TDIU under the provisions of 38 C.F.R. § 4.16(b) is not warranted. In this case, evidence of record does not show that the Veteran is unemployable solely due to service-connected disabilities. The record shows that he completed 4 years of high school and went to auto mechanics school but did not get his certificate. He last worked full-time in 1998 as a truck driver and became too disabled to work that same year. After that he reported he had a series of short-term manual labor jobs (truck driving, construction) lasting no more than a year due to his bad back. He worked in 1999 in demolition. The September 2010 VA examiner diagnosed DDD space narrowing at L5-Sl with degenerative spurring at L4-L5 and noted that this does affect the Veteran's ability to function in a manual labor job due to decreased endurance, fatigue, decreased mobility and inability to lift and carry heavy objects, but does not affect his ability to function in a sedentary job. The February 2011 VA examiner diagnosed lumbar strain with history of bilateral sciatica, temporary and transient condition, and lumbar spondylosis with degenerative disc disease, and noted that the Veteran's usual occupation was commercial truck driver. He had been unemployed for 10 to 20 years. He receives Social Security Administration disability benefits for COPD [chronic obstructive pulmonary disease]. The effect on usual occupation and resulting work problems was none. In a July 2014 VA multiple examination note, the examiner noted that the Veteran worked as a laborer for a few years after leaving the service, but he hurt his back on the job in 1970, working for the state industries. He received worker's compensation of several months and the received a cash settlement of $2,000. He has not worked since then. The Board finds, based on consideration of all of the medical and lay evidence of record, that although the Veteran has been unemployed for an extended period, the evidence does not indicate significant occupational impairment due to service-connected disabilities, and does not reflect an unusual or exceptional disability picture due to his service-connected lumbosacral strain and bilateral lower extremity sciatica to warrant referral for consideration under 38 C.F.R. § 4.16(b). The Board further finds that there is nothing in the record to show that the Veteran's service-connected disabilities alone cause impairment with employment over and above that which is contemplated in the assigned schedular rating in this case. The Board finds, therefore, that referral for a TDIU for consideration under 38 C.F.R. § 4.16(b) is not warranted. Because the preponderance of the evidence is against the appeal for a TDIU, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The appeal seeking to reopen a claim of service connection for bilateral pes planus (now claimed as bilateral foot pain) is denied. Service connection for a foot disability other than pes planus is denied. Service connection for left eye disability is denied. Service connection for osteoporosis is denied. Entitlement to a rating in excess of 20 percent for lumbosacral strain is denied. Entitlement to a TDIU is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs