Citation Nr: 1609310 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 05-32 295A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected right carpal tunnel syndrome prior to October 22, 2012, and to a rating in excess of 30 percent thereafter. 2. Entitlement to a rating in excess of 10 percent for service-connected left carpal tunnel syndrome prior to October 22, 2012, and to a rating in excess of 20 percent thereafter. 3. Entitlement to a rating in excess of 10 percent for service-connected residuals of a fractured L2 transverse process (hereinafter, "lumbar spine disorder") prior to October 22, 2012, and to a rating in excess of 40 percent thereafter. 4. Entitlement to a rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity associated with service-connected lumbar spine disorder. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) originally on appeal from decisions promulgated in September 2002 and May 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing before a Decision Review Officer (DRO) in July 2005, and before the undersigned Veterans Law Judge (VLJ) in March 2009. Transcripts from both proceedings are of record. In December 2009, the Board, in pertinent part, issued a decision that denied increased ratings for carpal tunnel syndrome of the right and left upper extremities, and remanded the lumbar spine and TDIU claims for further development to include a new examination. The Veteran appealed the Board's December 2009 decision to the United States Court of Appeals for Veterans Claims (Court). By an August 2011 memorandum decision, the Court, among other things, vacated that portion of the Board's decision that denied increased ratings for carpal tunnel syndrome of the right and left upper extremities. In July 2012, the Board remanded the carpal tunnel syndrome, lumbar spine, and TDIU claims for further development. Among other things, the Board noted that it did not appear the Veteran had been accorded a new VA examination of his service-connected lumbar spine disorder as directed by the prior December 2009 remand. Similarly, the Board also found that a new examination was warranted for the Veteran's right and left carpal tunnel syndrome and remanded these claims for such development. The record reflects the Veteran was subsequently accorded new VA examinations for these disabilities in October 2012, and, as detailed below, the Board finds it is adequate for resolution of this case. All other development directed by the Board's prior remand directives appears to have been substantially accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West. 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the instant case have been met. 2. The record reflects the Veteran has consistently reported recurrent numbness and fatigues of his hands and fingers throughout the pendency of this case. 3. Prior to October 22, 2012, the competent medical and other evidence of record reflects the Veteran's right and left carpal tunnel syndrome resulted in no more than mild incomplete paralysis; he did not meet or nearly approximate the criteria of moderate incomplete paralysis for either side during this period. 4. For the period from October 22, 2012, the competent medical and other evidence of record reflects the Veteran's right and left carpal tunnel syndrome resulted in no more than moderate incomplete paralysis; he did not meet or nearly approximate the criteria of severe incomplete paralysis for either side during this period. 5. The record reflects the Veteran has reported recurrent low back pain throughout the pendency of this case. 6. Prior to October 22, 2012, the competent and credible evidence of record does not reflect the Veteran's service-connected lumbar spine disorder was manifested by forward flexion of less than 60 degrees; combined range of motion of the thoracolumbar spine less 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. 7. For the period from October 22, 2012, the competent and credible evidence of record does not reflect the Veteran's service-connected lumbar spine disorder has been manifested by ankylosis. 8. The competent and credible evidence of record does not reflect the Veteran's lumbar spine disorder has been manifested by incapacitating episodes as defined by VA regulation, or associated neurologic impairment other than the already separately evaluated left lower extremity radiculopathy. 9. The competent and credible evidence of record reflects the Veteran's left lower extremity radiculopathy is manifested by no more than moderate incomplete paralysis; it does not meet or nearly approximate the criteria of moderately severe incomplete paralysis. 10. In addition to his bilateral carpal tunnel syndrome, lumbar spine disorder, and left lower extremity radiculopathy, the Veteran is also service connected for a right knee disorder, evaluated as 10 percent disabling; a left knee disorder, evaluated as 10 percent disabling; and tinea pedis, evaluated as noncompensable (zero percent). His overall combined disability rating is currently 80 percent. 11. The competent and credible evidence of record reflects the Veteran is only capable of marginal employment due to his service-connected disabilities; he is not able to obtain and/or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right carpal tunnel syndrome prior to October 22, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8615 (2015). 2. The criteria for a rating in excess of 30 for right carpal tunnel syndrome from October 22, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8615 (2015). 3. The criteria a rating in excess of 10 percent for left carpal tunnel syndrome prior to October 22, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8615 (2015). 4. The criteria for a rating in excess of 20 for left carpal tunnel syndrome from October 22, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8615 (2015). 5. The criteria for a rating in excess of 10 percent for service-connected lumbar spine disorder prior to October 22, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, Diagnostic Code 5235-5243 (2015). 6. The criteria for rating in of 40 percent for service-connected lumbar spine disorder from October 22, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, Diagnostic Code 5235-5243 (2015). 7. The criteria a rating in excess of 20 percent for radiculopathy of the left lower extremity associated with service-connected lumbar spine disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8520 (2015). 8. The criteria for assignment of a TDIU due to service-connected disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.1, 4.2, 4.3, 4.7, 4.10, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Initially, the Board notes that, for the reasons detailed below, it finds that the Veteran is entitled to assignment of a TDIU due to service-connected disability. Therefore, no further discussion of VA's duties to notify and assist is necessary regarding this claim as any deficiency has been rendered moot. With respect to the other appellate claims, the Board notes the Veteran was provided with notification via letters dated in May 2001, February 2002, July 2002, August 2003, October 2003, February 2004, March 2004, August 2005, March 2006, January 2010, and July 2012. All of these letters were sent prior to the most recent readjudication of the appeal below via a November 2013 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters, in pertinent part, informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, and what information and evidence will be obtained by VA. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. Various records were obtained and considered in conjunction with this case, to include from the Social Security Administration (SSA). Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the July 2005 DRO hearing and the March 2009 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence which demonstrates symptoms of his service-connected disabilities not reflected by the evidence currently of record. Moreover, he was accorded VA medical examinations which evaluated his service-connected disabilities in August 2002, October 2007, and October 2012. VA examiners are presumed qualified to render competent medical opinion(s). See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). The Board also notes that the findings of these examinations appear consistent with the other evidence of record, and the Veteran has not reported his service-connected bilateral carpal tunnel syndrome, lumbar spine disorder, and/or left lower extremity radiculopathy have increased in severity since the most recent examination. Accordingly, the Board finds that these examinations are adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board also observes that it previously determined in the December 2009 decision that the duty to notify and assist had been satisfied regarding the carpal tunnel syndrome claims. Although the Court's August 2011 memorandum decision found the Board's decision contained inadequate reasons and bases to include not adequately considering evidence favorable to these increased rating claims, no specific failure in the duty to notify or assist was found with respect to these claims. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ["Court will [not] review BVA decisions in a piecemeal fashion"]; see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ["[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"]. The Board is therefore confident that if the Court had any substantive comments concerning the Board's findings regarding the duties to assist and notify for the carpal tunnel syndrome claims, such would have surfaced in its memorandum decision so that any deficiencies could be corrected. The Board further notes, in regard to the aforementioned July 2005 and March 2009 hearings, that Bryant v. Shinseki, 23 Vet. App. 488 (2010), held that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the DRO and the undersigned VLJ both accurately acknowledged the nature of the appellate claims and asked questions to clarify the Veteran's contentions during the respective hearings. Moreover, the Veteran, through his testimony and other statements of record, has demonstrated actual knowledge of the elements necessary to substantiate his claims. Further, as discussed above, the Board has already determined the Veteran received adequate notice on these matters. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c) (2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c) (2) have been satisfied. The Board observes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). General Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In fact, the Veteran has already been assigned such "staged" ratings in the instant case for his bilateral carpal tunnel syndrome and lumbar spine disorder. With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "slight" includes small in size, degree, or amount. WEBSTER'S II NEW COLLEGE DICTIONARY at 1038 (1995). The definitions for "mild" include not very severe. Id. at 694. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. Analysis - Carpal Tunnel Syndrome Under the laws administered by VA distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the instant case, the Veteran's right side is considered the major (dominant) upper extremity. The Veteran's carpal tunnel syndrome has been evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8615 (neuritis of the median nerve). Under this Code, mild incomplete paralysis warrants a 10 percent evaluation for both the major and minor side. Moderate incomplete paralysis warrants a 20 percent evaluation on the minor side and a 30 percent evaluation on the major side. Severe incomplete paralysis of the minor side warrants a 40 percent rating, and a 50 percent rating on the major side. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand, pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm, flexion of wrist weakened, and pain with trophic disturbances, warrants a 60 percent evaluation on the minor side and a 70 percent evaluation on the major side. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In this case, the Board finds that prior to October 22, 2012, the competent medical and other evidence of record reflects the Veteran's right and left carpal tunnel syndrome resulted in no more than mild incomplete paralysis; he did not meet or nearly approximate the criteria of moderate incomplete paralysis for either side during this period. The Board acknowledges the Veteran has reported recurrent numbness and fatigue of the hands and fingers throughout the pendency of this case. However, while he was found to have spotty sensory deficits in all his fingers at the August 2002 VA examination, these were found to be of a "mild nature." Although the Board is not bound by this description of the VA examiner, it is probative evidence to be taken into consideration. Moreover, it appears consistent with the examination findings to include the fact that both palmar flexion and dorsiflexion were to 90 degrees. VA recognizes normal wrist palmar flexion as 80 degrees, and normal wrist dorsiflexion to 70 degrees. See 38 C.F.R. § 4.71, Plate I. Treatment records dated in October 2003 note, in part, that all joint groups and ranges of motion were within normal limits; and that grip strength is 5/5 on both sides. Treatment records dated in November 2003 note, among other things, the Veteran had relatively good range of motion in the wrists and hands. VA treatment records dated in February 2007 note, in pertinent part, the Veteran had stable carpal tunnel syndrome symptoms. The Board also observes the subsequent October 2007 VA examination found that the bilateral hands were not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive movement. The Veteran did not have muscle wasting. Sensory examination was normal throughout the body; motor examination showed no atrophy of the arms; and he had good strength testing of the upper extremities. Moreover, the examiner stated the Veteran did not have paralysis of the hands. The Board also notes that while the Veteran's statements, and various treatment records on file for this period, note complaints of pain, numbness, and limitation of motion they do not appear to contain specific findings as to the level of functional impairment due to such symptoms. Consequently, such evidence does not document impairment that is more than mild. In view of the foregoing, and thorough review of the other evidence of record, the Board finds that the record reflects the Veteran's bilateral carpal tunnel syndrome resulted in little or no functional impairment prior to October 22, 2012. Stated another way, the level of functional impairment, reflected by incomplete paralysis, was not very severe; and was small in size, degree, or amount. As such, it is consistent with the current 10 percent ratings assigned for both the right and left carpal tunnel syndrome during this period based upon mild incomplete paralysis. Therefore, a rating in excess of 10 percent is not warranted to include on the basis of a "staged" rating(s) prior to October 22, 2012. In regard to the period from October 22, 2012, the Board finds the competent medical and other evidence of record reflects the Veteran's right and left carpal tunnel syndrome resulted in no more than moderate incomplete paralysis; he did not meet or nearly approximate the criteria of severe incomplete paralysis for either side during this period. The Board acknowledges the Veteran reported severe pain, numbness, and paresthesias and/or dysesthesias at the October 2012 VA examination. However, these complaints are not reflected by the physical examination findings themselves. For example, muscle strength testing showed wrist flexion, wrist extension, and pinch to be normal at 5/5. Although grip muscle was decreased, it was 4/5 indicating a relatively small amount of loss of strength. Similarly, sensory examination showed the right and left hand/fingers were both decreased, but not absent. Reflex examination was normal at 2+ on all tests. As such, the level of impairment appears to be at most of medium quantity, quality, or extent consistent with a finding of moderate incomplete paralysis both right and left. Moreover, the VA examiner described the right and left median nerves to be manifested by moderate incomplete paralysis. Although not binding on the Board, this description appears consistent with the other evidence of record. Nothing in the other evidence of record reflects the Veteran has extremely intense incomplete paralysis of the right or left carpal tunnel syndrome during this period; i.e., he has not been shown to have severe incomplete paralysis. For these reasons, the Board finds the Veteran does not meet or nearly approximate the criteria for a rating in excess of 30 percent for his right carpal tunnel syndrome, or a rating in excess of 20 percent for his left carpal tunnel syndrome, for the period since October 22, 2012, to include on the basis of a "staged" rating(s). Analysis - Lumbar Spine In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the record reflects the Veteran has reported recurrent back pain throughout the pendency of this case. Therefore, these provisions are for consideration in the instant case, and, as detailed below, VA examinations have included repetitive motion testing in an effort to stimulate the effect of pain during flare-ups. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). In this case, the Board finds that despite the Veteran's complaints of pain, the competent and credible evidence of record does not reflect, prior to October 22, 2012, that his service-connected lumbar spine disorder was manifested by forward flexion of less than 60 degrees; combined range of motion of the thoracolumbar spine less 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. For example, the August 2002 VA examination showed he had 90 degrees of flexion, 30 degrees of right and left bending, and 15 degrees of extension. Although he reported he had been getting some muscle relaxation procedures performed for back spasm, his back was found to be straight; i.e., there was no evidence of abnormal spinal contour. The examiner also stated that the DeLuca provisions do not appear to affect the Veteran and therefore were not applicable. At the subsequent October 2007 VA examination, it was noted the Veteran complained of pain with all movement. However, he was observed to bend with forward flexion to 80 degrees; as well as to bend at 15 degrees of extension, lateral flexion 15 degrees right and left, and rotation 15 degrees right and left. He was also noticed to be bending, rotating, flexing, and extending while putting his shoes on and off and dressing on and off. Therefore, his range of motion for the lumbar spine was found to be 0 to 80 degrees of flexion, extension 0 to 15 degrees, lateral flexion 0 to 15 degrees right and left, and rotation 0 to 15 degrees right and left. Further, there was no muscle spasm or guarding. Although there was some flatness of the lumbar spine, there were no postural abnormalities or fixed deformities. The Board observes that various treatment records are on file which note complaints of back pain, and include notations of limitation of motion. However, these records do not appear to contain specific range of motion findings which demonstrate flexion less than 60 degrees and/or combined range of motion less than 120 degrees to include during flare-ups. The Board acknowledges that records from the SSA indicate findings of muscle spasm of the lower back, to include treatment records dated in 2005. However, these records do not indicate the spasm has resulted in abnormal spinal contour. In fact, the first such evidence of this type of impairment appears to be that of the VA examination conducted October 22, 2012; which also showed forward flexion less than 60 degrees, specifically to 25 degrees. Similarly, the SSA records include findings of antalgic gait, but this appears to be due to conditions of the ankles and/or knees and not the lumbar spine. Nothing in the other evidence of record, to include the medical treatment records, reflects the Veteran's service-connected lumbar spine disorder met or nearly approximated the criteria for a rating in excess of 10 percent prior to October 22, 2012, pursuant to the General Rating Formula for Diseases and Injuries of the Spine to include on the basis of a "staged" rating(s). The Board further finds that for the period from October 22, 2012, the competent and credible evidence of record does not reflect the Veteran's service-connected lumbar spine disorder has been manifested by ankylosis. For example, there were no findings of ankylosis on the October 2012 VA examination or any of the other evidence during this period. Moreover, ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). In this case, the October 2012 VA examination reflects the Veteran had forward flexion to 25 degrees of the lumbar spine, with no change after repetitive motion testing. As such, the record does not demonstrate immobility and consolidation of the joint. Therefore, a rating in excess of 40 percent is not warranted for this period to include on the basis of a "staged" rating(s). The Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine that any associated neurologic impairment is to be evaluated separately under the appropriate Diagnostic Code, to include but not limited to bowel or bladder impairment. Here, the Veteran has already been assigned a separate rating for left lower extremity radiculopathy associated with the lumbar spine disorder. However, a thorough review of the record does not indicate any other associated neurologic impairment that would warrant a separate rating. In fact, the October 2012 VA examiner indicated the Veteran had no associated neurologic impairment other than the left lower extremity radiculopathy. The Board has also considered the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes in evaluating the Veteran's service-connected lumbar spine disorder. This Formula provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, 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. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). The Board acknowledges that the October 2007 VA examination noted the Veteran had had an "episode" of intervertebral disc syndrome. Further, the Veteran has indicated there are period(s) where he requires bed rest due to the symptoms of his lumbar spine disorder. However, a thorough review of the record does not reflect he has actually had incapacitating episodes as defined by VA regulations to include bed rest prescribed by a physician and treatment by a physician. Moreover, the October 2012 VA examination found the Veteran had not had incapacitating episodes during the past 12 months. As such, it does not appear the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is applicable to this case; and clearly does not provide a basis for a rating in excess of 10 percent prior to October 22, 2012; or a rating in excess of 40 percent thereafter. In evaluating the Veteran's service-connected lumbar spine disorder, the Board wishes to emphasize that it acknowledged his complaints of low back pain, and took into account the applicability of 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, a thorough review of the record did not demonstrate any distinctive period(s) where these complaints resulted in additional functional impairment to the extent necessary for ratings in excess of those currently in effect. Analysis - Left Lower Extremity Radiculopathy The Veteran's left lower extremity radiculopathy has been evaluated as impairment of the sciatic nerve, which is evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this Code, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. In this case, the competent and credible evidence of record reflects the Veteran's left lower extremity radiculopathy is manifested by no more than moderate incomplete paralysis; it does not meet or nearly approximate the criteria of moderately severe incomplete paralysis. For example, the August 2002 VA examination noted the Veteran did complain of low back pain radiating into his legs; as well as leg fatigue and numbness. Nevertheless, there were no reflex, sensory or motor deficits on the physical examination itself. At the subsequent October 2007 VA examination, the Veteran complained of left leg numbness and pain radiating to the mid-thigh. Nevertheless, there were no reflex, sensory, or motor deficits on the physical examination itself. The Board further notes the October 2012 VA examination found the Veteran to have moderate incomplete paralysis of the left sciatic nerve (i.e., the left lower extremity radiculopathy). The Board reiterates that such findings are not controlling, but is probative evidence that must be taken into account. Moreover, the examination findings themselves reflect impairment of a medium quantity, quality, or extent; i.e., they are indicative of no more than moderate incomplete paralysis. For example, left knee extension, ankle plantar flexion, and ankle dorsiflexion were all 5/5 (normal) on muscle strength testing. Similarly, reflex examination of the left knee and ankle was 2+ (normal). Sensory examination of the lower left leg/ankle and feet/toes were decreased but not absent; and the left thigh/knee was normal. Gait was also normal. In view of the foregoing, the Board finds the Veteran's does not meet or nearly approximate the criteria for a rating in excess of 20 percent for his service-connected left lower extremity radiculopathy under Diagnostic Code 8520. Analysis - Extraschedular Rating In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board notes it does not appear the Veteran has explicitly contended an extraschedular rating(s) is warranted for his service-connected bilateral carpal tunnel syndrome, lumbar spine disorder, and left lower extremity radiculopathy. Further, it does not appear such a claim(s) is otherwise raised by the record, particularly as the Board finds the rating criteria contemplate the impairment associated with these disabilities. As detailed above, the Board was required to consider the Veteran's overall level of functional impairment for his bilateral carpal tunnel syndrome and left lower extremity radiculopathy and assign a rating for such commensurate with the level of incomplete paralysis. His lumbar spine disorder was manifested by pain and limitation of motion, which are manifestations contemplated in the rating criteria to include 38 C.F.R. §§ 4.40, 4.45, and 4.59. Moreover, as the Board was required to take into account the Veteran's complaints of pain in assigning the appropriate schedular rating pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59, to assign a schedular rating based upon pain would appear to be a violation of the prohibition against pyramiding. Therefore, the Board finds the rating criteria are adequate to evaluate these service-connected disabilities and referral for consideration of extraschedular rating is not warranted. Analysis - TDIU It is the established policy of the 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). A total disability will be considered to exist 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. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). Here, in addition to his bilateral carpal tunnel syndrome, lumbar spine disorder, and left lower extremity radiculopathy, the Veteran is also service connected for a right knee disorder, evaluated as 10 percent disabling; a left knee disorder, evaluated as 10 percent disabling; and tinea pedis, evaluated as noncompensable (zero percent). His overall combined disability rating is currently 80 percent. See 38 C.F.R. § 4.25. Therefore, he satisfies the schedular requirements for consideration of a TDIU under 38 C.F.R. §§ 3.340, 4.16(a). Consequently, the Board must now determine whether his service-connected disabilities preclude his ability to obtain and/or maintain substantially gainful employment. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Board acknowledges that a December 2003 private medical statement from a Dr. Glick, and an October 2007 private medical statement from a Dr. Singh, essentially found the Veteran was unable to work due to his medical conditions. However, these statements discussed both service-connected and nonservice-connected disabilities. Similarly, the SSA records reflect he was found to be entitled to disability benefits based upon his service-connected back disorder and nonservice-connected acquired psychiatric disorder. Consideration may not be given to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board also observes that the October 2007 VA examiner opined that while the Veteran's lumbar spine disorder did prevent him from being gainfully employed for heavy duty, it did not prevent him from being gainfully employed for light duty. Similarly, the October 2012 VA examination, as well as an October 2013 VA medical opinion, essentially concluded the Veteran's service-connected disabilities preclude light or sedentary. However, the type of restrictions these VA clinicians deemed necessary indicate the Veteran is capable of no more than marginal employment. For example, the October 2012 VA examination stated he could not lift more than 5-10 pounds, or bend or twist/stand/walk more than 15 minutes at a time all due to his back limiting most physical activities. The October 2013 VA medical opinion found his service-connected disabilities did not preclude limited duty or sedentary employment not requiring standing, walking, lifting, carrying, bending, driving or operating machinery, using a computer or completing manual tasks with tools or repetitive hand motion. The Board finds that such restrictions indicate, at best, marginal employment particularly when taking into account the Veteran's work history. In pertinent part, the record indicates post-service he worked from 1994 to 1999 as a postal carrier, which he reportedly left due to his back and knee impairment; then in the restaurant industry to include as a cook. In short, the type of employment restrictions described by the VA clinicians do not appear to enable the Veteran to work in an occupation consistent with his work history. Further, the fact he cannot use a computer would appear to limit the type of sedentary employment he might otherwise be able to pursue. The legal standard for determining TDIU is whether a claimant is able to obtain and/or maintain substantially gainful employment. Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the claimant resides. Moore, supra. Further, relevant regulatory provisions specifically state that marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342 (2000). Moreover, the law mandates resolving all reasonable doubt in favor of a claimant, to include degree of disability. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. In view of the foregoing, the Board finds that the competent and credible evidence of record reflects the Veteran is only capable of marginal employment due to his service-connected disabilities; he is not able to obtain and/or maintain substantially gainful employment due to his service-connected disabilities. Therefore, he is entitled to a TDIU. ORDER Entitlement to a rating in excess of 10 percent for service-connected right carpal tunnel syndrome prior to October 22, 2012, is denied. Entitlement to a rating in excess of 30 percent for service-connected right carpal tunnel syndrome from October 22, 2012, is denied. Entitlement to a rating in excess of 10 percent for service-connected left carpal tunnel syndrome prior to October 22, 2012, is denied. Entitlement to a rating in excess of 20 percent for service-connected left carpal tunnel syndrome from October 22, 2012, is denied. Entitlement to a rating in excess of 10 percent for service-connected lumbar spine disorder prior to October 22, 2012, is denied. Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disorder from October 22, 2012, is denied. Entitlement to a rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity associated with service-connected lumbar spine disorder is denied. Entitlement to a TDIU due to service-connected disability is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs