Citation Nr: 1612460	
Decision Date: 03/28/16    Archive Date: 04/07/16

DOCKET NO.  07-39 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include degenerative disc disease. 

2.  Entitlement to an effective date earlier than October 4, 2001, for the grant of a total disability rating based on individual unemployability (TDIU), on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran, his spouse, and Dr. E. T.



ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1973 to February 1976.  His awards and decorations included the Parachute Badge.

In January 2006, the Board of Veterans' Appeals (Board) granted the Veteran's claim of entitlement to service connection for degenerative disc disease as part of the already service-connected residuals of a lumbar spine injury.  That decision was effectuated in a February 2007 RO rating decision which assigned a 60 percent rating for the service-connected residuals of a lumbar spine injury, with degenerative disc disease, effective October 4, 2001.  In February 2007, the RO also granted the Veteran's claim of entitlement to a TDIU, effective October 4, 2001.  The Veteran disagreed with those effective dates, and appealed to the Board.  

The procedural history of this matter, including several appeals to the United States Court of Appeals for Veterans Claims (Court), has previously been set forth in detail, including most recently in the Board's August 2014 decision denying the above-listed claims.

The Veteran disagreed with the Board's August 2014 decision, so again appealed to the Court.  

In September 2015, pursuant to a Joint Motion for Remand (JMR) by the Veteran and the VA (the parties), the Court vacated the Board's August 2014 decision and remanded the matter to the Board for compliance with the instructions in the JMR.  The JMR directed the Board to address a February 1992 VA treatment note indicating the presence of spasm and cauda equina and to also address the relevance of the Veteran's service-connected incontinence and impotence conditions as evidence of the severity of his lumbar spine condition prior to October 4, 2001.  The JMR also remanded the claim of entitlement to an earlier effective date for TDIU on the grounds that it was inextricably intertwined with the lumbar spine claim.

The matters are again before the Board pursuant to that remand.

Notably, the issue of entitlement to an effective date earlier than October 4, 2011 for the grant of TDIU, on an extraschedular basis, has been previously remanded by the Board.  Pursuant to that remand, the Director of the VA Compensation and Pension Service concluded, in December 2014, that a TDIU on an extraschedular basis was not warranted.  The RO readjudicated the extraschedular claim in February 2015.  The development and readjudication that the Board previously requested with respect to TDIU has been completed, so all aspects of the TDIU claim are ripe for adjudication on the merits.  Stegall v. West, 11 Vet.App. 268, 271 (1998).

The Veteran testified at a hearing before the undersigned VLJ held in Washington, D.C., in December 2015 with respect to the issues on appeal.  The claims file includes a transcript of the hearing.  The claims file also includes transcripts of a September 2001 Decision Review Officer hearing, a December 2002 Board hearing, and a November 2005 Board hearing.

In February 2016, the Veteran waived AOJ consideration of the evidence he submitted in support of his claim since the most recent Statement of the Case.  He requested that the Board consider the new evidence and proceed with adjudication of the appeal.  Therefore, the Board need not remand the matter for consideration of that evidence and may consider the merits of the appeal without further delay.  38 C.F.R. § 20.1304(c).




FINDINGS OF FACT

1.  On August 6, 1991, the RO received the Veteran's increased rating claim for service-connected residuals of a lumbar spine injury. 

2.  Prior to February 20, 1992, it was not factually ascertainable that the Veteran's residuals of a lumbar spine injury to include DDD warranted a rating in excess of 40 percent.

3.  It is factually ascertainable that, as of February 20, 1992, the Veteran's residuals of a lumbar spine injury to include DDD resulted in recurring attacks of moderate to severe IVDS with intermittent relief.  The recurring attacks were characterized by pain, moderate limitation of motion, muscle spasms, urinary incontinence, and/or radiculopathy.

4.  Prior to October 4, 2001, it was not factually ascertainable that the Veteran's residuals of a lumbar spine injury to include DDD warranted a rating in excess of 40 percent.  His IVDS was not "pronounced" in severity, with little intermittent relief, as the muscle spasms, urinary incontinence, and other neurological abnormalities experienced by the Veteran were only occasional during the period under consideration.

5.  Prior to October 4, 2001, the Veteran did not meet the requisite schedular percentage requirements for TDIU and he was not unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for an effective date of February 20, 1992, but no earlier, for a 40 percent rating for residuals of a lumbar spine injury, to include DDD, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5292, 5293, and 5295 (effective prior to September 23, 2002).

2.  The criteria for an effective date prior to October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include DDD, have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5292, 5293, and 5295 (effective prior to September 23, 2002).

3.  The criteria for an effective date prior to October 4, 2001 for the grant of a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.155(a), 3.157, 3.400, 4.16(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), 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 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.  In December 2015, the Veteran had a hearing before the undersigned Veterans Law Judge in which he provided testimony and argument on the issues currently on appeal.  The undersigned Veterans Law Judge specifically addressed the legal criteria relevant to the Veteran's claims and asked questions as to symptomatology, medical treatment, and the existence of any private medical opinions or other evidence that would help the Veteran's claim.  Neither the Appellant, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing.  The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error.

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. 

The Veteran's earlier effective date claims for the increased rating and for a TDIU are "downstream" elements of the Board's grant of service connection for DDD as part of the service-connected lumbar spine disability and the RO's assignment of a disability rating and grant of a TDIU in the currently appealed rating decision.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 48 3 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In this case, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.  The Veteran also was notified of the types of evidence he could submit in support of his claims.  He further was informed of when and where to send the evidence.  After consideration of the contents of this notice, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  There has been no suggestion from the Court that notice has in any way been deficient in this case.  

The February 2007 rating decision currently on appeal was fully favorable to the Veteran on the issues of an increased rating for residuals of a lumbar spine injury and for an award of TDIU.  The Board finds that the statutory notice has served its purpose and additional notice is no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A December 2007 statement of the case (SOC) provided notice on the "downstream" issue of an earlier effective date and readjudicated the matter after the Appellant and his representative responded and further development was completed.  Neither the Veteran nor his attorney has alleged any prejudice from any downstream notice defect.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the Appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").  The Board finds that any failure to provide notice as to the disability rating under the VCAA has not been prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. 

As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim.  An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board acknowledges that retrospective opinions may be necessary in some circumstances.
 
All evidence relevant to the Veteran's claims has been secured.  It is noted that determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings.  Generally, further development of the evidence is not necessary unless it is alleged that there is evidence constructively of record that has not yet been received.  The Veteran has not identified any other pertinent evidence that remains outstanding.  He also has received multiple extensions of time to attempt to obtain additional evidence in support of his claims.  

In any case, the Veteran was afforded the opportunity for multiple VA examinations during the relevant time period, he has submitted private opinions addressing the pertinent medical issues, and the Board finds that the medical evidence currently of record (including contemporaneous VA examinations and treatment records) is sufficient to make a decision on the merits.  The Veteran has not argued otherwise.

In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

II.  General Legal Principles

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In deciding the Veteran's claim, 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 preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value.

Provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

III.  Entitlement to an Effective Date Earlier than October 4, 2001 for a 60 Percent Rating for Residuals of a Lumbar Spine Injury, to include DDD

The Veteran seeks entitlement to an earlier effective date for a 60 percent rating for residuals of a lumbar spine injury, to include DDD.  The Veteran asserts that the incorrect Diagnostic Code was applied to his disability and that he is entitled to a 60 percent rating prior to October 4, 2001, under Diagnostic Code 5293.

In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  

The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997).

The United States Court of Appeals for Veterans Claims has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet. App 125, 126 (1997).  Thus, three possible dates may be assigned depending on the facts of the case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

Harper, 10 Vet. App at 126.  Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2).  

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 

Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution.  If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155. 

A July 1981 rating decision granted service connection for residuals of a lumbar spine injury, rated 20 percent, effective July 31, 1980.  A subsequent June 6, 1991 Board decision continued the 20 percent rating.  The Veteran did not appeal this decision and it became final based on the evidence of record at the time.  It is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision.  38 U.S.C.A. §§ 5109A, 7104; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision).  CUE in the June 1991 Board decision is neither alleged nor raised by the record. 

The earliest documentation in the claims file received after the June 1991 Board decision that can be construed as a formal claim for an increased rating for residuals of a lumbar spine injury, to include DDD, is the Veteran's statement received on August 6, 1991, requesting re-evaluation of his "back condition" for an increased rating. 

Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one-year period, an increase in a disability was factually ascertainable.  See 38 C.F.R. § 3.400(o)(1)-(2).  As noted above, however, a June 6, 1991, Board decision denied a rating in excess of 20 percent for the Veteran's residuals of a lumbar spine injury disability to include DDD.  As the Board's June 1991 decision is final based on the evidence then of record, the Board will consider the additional evidence received since the final June 6, 1991 Board denial, to determine when the increase in disability was first factually ascertainable. 

The Veteran's service-connected low back condition first was evaluated under Diagnostic Code 5295 for lumbosacral strain.  During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the rating criteria for evaluating disabilities of the lumbar spine.  

Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome.  67 Fed. Reg. 54,345 (Aug. 22, 2002).  

Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine.  68 Fed. Reg. 51,454 (Aug. 27, 2003).  At that time, VA also reiterated the changes to DC 5293 (reclassified as DC 5243) for intervertebral disc syndrome.  

As recently as a May 2002 rating decision, the Veteran continued to be evaluated under DC 5295.  Then, as a result of revised criteria, in a code sheet from a February 2005 rating decision, the Veteran was noted to be evaluated under DC 5237, for a lumbosacral strain.  Thereafter, once DDD was considered part and parcel of the service-connected condition, as noted in a February 2007 rating decision code sheet, the Veteran's lumbar spine disability was rated under DC 5243 for intervertebral disc syndrome.

Both parties to the June 2012 JMR contended that the Board's January 2011 decision did not clarify adequately which diagnostic criteria was considered and applied in denying the Veteran's earlier effective date claim.  Specifically, while the manifestation of "muscle spasms" is itemized under the 20 percent criteria for DC 5295 for lumbosacral strain, it also is itemized under the 60 percent criteria for DC 5293 (reclassified as DC 5243).

The Board clarifies here that the effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change.  The Board must apply only the earlier version of the regulation for the period prior to the effective date of change.  See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2014) (stating that, where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue).  Thus, in consideration of the evidence prior to October 4, 2001, the Board must review the evidence under the laws in effect at that time.  For purposes of this claim seeking an effective date earlier than October 4, 2001 for the grant of a 60 percent increased rating, the Board can only consider the spine criteria in effect prior to the September 23, 2002 changes.  

The December 2013 JMR directed the Board to consider whether the Veteran's muscle spasms, present before October 2001, were sufficient to warrant an earlier effective date under DC 5293.

Prior to September 23, 2002, lumbar spine disabilities were rated under DC 5292 (limitation of motion), DC 5293 (intervertebral disc syndrome), or DC 5295 (lumbosacral strain).  (There were other diagnostic codes relating to the spine as well, such as for ankylosis of the spine, but those other diagnostic codes have no application on the facts of this case.)

Under DC 5292 (limitation of motion), a 10 percent rating was warranted if limitation of motion was slight, 20 percent if moderate, and 40 percent if severe.  The Board observes that the words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  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.  

Under DC 5293 (intervertebral disc syndrome).  A rating of 10 percent was warranted for mild symptoms.  A rating of 20 percent was warranted for moderate, recurring attacks.  A rating of 40 percent was warranted for severe, recurring attacks with intermittent relief.  A rating of 60 percent was warranted for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.  38 C.F.R. § 4.71a, DC 5293 (2001). 

And under DC 5295 (lumbosacral strain), a 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in standing position.  A maximum 40 percent rating was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  38 C.F.R. § 4.71a, DC 5295 (2002). 

The Veteran sought an increased rating for his low back disability indicating increased pain and decreased motion.  He further noted on his August 6, 1991 claim that he was on extremely strong pain medications, decreasing his overall functioning.

Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity.  38 U.S.C.A. § 1155.  Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities.  If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  See 38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  See 38 C.F.R. 
§ 4.45.  

In July 1991, the Veteran was evaluated by the orthopedic clinic.  He complained of pain in his back and legs since 1974, when he was involved in a parachute accident. It was noted that two and a half years earlier, he had also sustained an "on the job" injury to his back.  On physical examination, the Veteran's gait was hunched over, deep tendon reflexes were intact, and straight-leg raising was positive at 20 degrees bilaterally.  He was given an assessment of low back pain without bowel/bladder complaints.  An October 1991 report notes an April 1991 magnetic resonance image (MRI) indicated "asymmetric protrusion."  At that time, the private physician opined that the Veteran was not a surgical candidate.

VA outpatient treatment records also indicate low back treatment.  In January 1992, the Veteran complained of pain in his low back with radiation of pain into his right leg.  On physical examination, straight-leg raising was positive at 20 degrees, there were no motor deficiencies in the lower extremities, and there were no changes in his bowel habits.  Degenerative joint disease in the L5-S1 and rule-out nerve root impingement along the S1 was assessed.  In February 1992, it was noted that the Veteran had a history of chronic low back pain since a parachute injury in 1974, and was currently unemployed due to his back pain.  He complained of impotence and of occasional urinary incontinence over many years.  On physical examination, straight-leg testing was positive, deep tendon reflexes were symmetric, there was tenderness on palpation, and paraspinal muscle spasms were also present.  It was the physician's impression that the Veteran had chronic low back pain with evidence of chronic cauda equina symptoms. 

The claim is complicated by the fact that it is well documented the Veteran incurred a serious occupational (non-service related) back injury in February 1989.  The Veteran currently is receiving Social Security Administration (SSA) disability benefits largely as a result of this injury.

The Veteran also applied for Workers Compensation benefits related to this occupational injury.  In April and May 1993, the Veteran underwent orthopedic consultations for the purpose of determining his qualified injured worker status (in association with a workers' compensation claim for a post-service February 1989 occupational injury).  On examination of the lumbar spine, there was normal spinal alignment and palpable tenderness around the thoracolumbar spine region, sacroiliac joint bilaterally, and buttocks bilaterally.  There was no allodynia or evidence of paravertebral muscle spasm.  Lumbosacral spine ranges of motion were: 50 degrees forward flexion, 10 degrees backward extension, and 15-20 degrees bilateral rotation.  The Veteran was able to walk on the heels and toes, perform a full squat, and sit up without difficulty.  His straight leg testing was negative at 80 degrees bilaterally.  Knee and ankle jerks were present and equal, bilaterally. 

On November 1996 VA examination, the Veteran complained of low back pain with multiple joint aches/pains, occasional right lower extremity numbness, and not being able to bend over well or lift.  He had no bowel/bladder changes.  On physical examination, he had no postural abnormalities or fixed deformities, and good musculature of the back.  Lumbosacral spine ranges of motion were: 65 degrees forward flexion, 10 degrees backward extension, 25 degrees bilateral lateral flexion, and 20 degrees bilateral rotation.  Neurologically, his motor strength was 5/5 for ankle plantar and dorsiflexion, knee flexion and extension, and hip flexion; a pinprick test was intact. L5-S1 DDD with spondylosis was diagnosed, and the examiner opined that while this disability had "significantly decreased [the Veteran's] ability to do manual labor . . . it should not necessarily prevent him from working at sedentary occupations." 

On March 1997 VA examination, the Veteran complained of constant low back pain with right lower extremity pain and occasional weakness/numbness.  He also complained of being unable to bend over or lift well.  He had no bowel or bladder incontinence.  On physical examination, there were no postural abnormalities or fixed deformities.  He was mild to moderately tender to palpation over the lumbosacral spine.  Lumbosacral ranges of motion were: 65 degrees forward flexion, 20 degrees backward extension, and 30 degrees bilateral lateral flexion and bilateral rotation; there was some grimacing with difficulty straightening on motion. Neurologically, his motor strength was 5/5 for extensor hallucis longus, tibialis anterior, gastrosoleus, and knee flexion and extension.  Light touch was intact from L4-S1 and reflexes were symmetrical for Achilles and patellar.  Severe L5-S1 DDD was diagnosed. 

On March 1999 VA examination, the Veteran complained of constant and excruciating pain, weakness, fatigue, lack of endurance and stiffness in his low back.  He also complained of radiating pain down to the right lower extremity, which caused some intermittent numbness in his right thigh area.  He reported that he could brush his own teeth and bathe, but had difficulty dressing himself and could not shower.  He reported that he was unable to perform household chores or participate in many daily activities, as he refrained from all activities that required prolonged sitting, standing, walking, bending, turning, or lifting.  He also reported that he had not been employed since February 1, 1989.  On physical examination, the examiner noted that the Veteran was uncooperative and would not comply with the range of motion testing of the lumbar spine.  Consequently, the VA examiner was unable to comment on whether he had painful motion.  The Veteran was able to sit up from a supine position though, suggesting a 90-degree lumbar flexion.  It also appeared that the Veteran had muscular spasm in the lumbosacral spine in both paraspinal areas and tenderness in the midline and paraspinal areas of the lower lumbosacral region.  The examiner could not comment on any weakness.  The musculature of the back was otherwise normal, but posture was abnormal in that there was a mild loss of lumbar lordosis.  Neurologically, the Veteran's motor function was within normal limits.  Residuals of a lumbar injury/lumbosacral strain and DDD of L5-S1 were diagnosed.  The examiner opined that the Veteran's condition mildly affected him in any activities that would require prolonged standing, walking, sitting, repetitive bending, or lifting.  The examiner also noted that there was "equivocal objective neurological impairment due to disc disease, in that there [was] evidence of straight leg raising impairment at 30 degrees on bilateral lower extremities, but [that the] remainder of the neurologic examination [was] intact, without other signs of radiculopathy."

In September 2001, the Veteran testified before a Decision Review Officer.  He testified that, upon awakening, he has to hold on to supports in order to avoid falling because he would feel "like a million volts of electricity [was] going through [his] legs."  He indicated that, on some mornings, he could not immediately get out of bed or walk.  He testified that, as the day progresses, he would regain movement and the pain would decrease.  He testified that he remained cautious to avoid aggravating his symptoms.  He also reported taking narcotic pain killers.

On October 4, 2001 VA examination, the Veteran complained of sharp, throbbing, and burning pain in the upper and lower back.  He did not use a cane, brace, walker, or any type of abdominal or cervical support.  He reported difficulty walking, standing, sitting, bending, and lifting.  He also stated that he could barely dress himself, and could not walk, drive, shop, push a lawn mower, or garden.  He could brush his teeth, shower, and take out the trash.  However, he stated that since the pain was constant, he was afraid "he might hurt himself or others if he [continued] to have pain and [suffering]." 

On physical examination on October 4, 2001, the Veteran walked with his head flexed and stood with a forward list.  When asked to stand straight and walk in an upright manner, he was able to do so but complained of pain.  There was no right or left paralumbar muscle spasm or evidence of scoliosis, but there was dorsal kyphosis and lumbar lordosis.  Lumbosacral spine ranges of motion were: 60 degrees forward flexion, -20 degrees backward extension, 20 degrees bilateral lateral bending, and 20 degrees bilateral rotation.  The examiner noted that he was "not convinced" that the Veteran was demonstrating full effort.  Straight leg testing was negative on the left side at 90 degrees and positive on the right at 60 degrees. Patrick's test was positive, bilaterally, for low back pain.  On neurological examination, there was no evidence of sensory or motor loss in the lower extremities.  The examiner also noted that the Veteran was able to sit in an upright position, so he assumed that his extension was at least 0 degrees, even if he would not go through the full motion.  All deep tendon reflexes were normal and equal; motor strength was within normal limits; and sensory examination was intact. Severe degenerative arthritis of the lumbar spine with right radiculopathy and DDD with L5 nerve root involvement were diagnosed.  Regarding the Veteran's functional capacity, the examiner opined, that the Veteran could lift and carry 20-25 pounds occasionally and 15-20 pounds frequently, and he could sit, stand and walk for 4-6 hours in an 8-hour work day.  He could not climb ladders, stoop, kneel, or crouch, and the examiner advised against walking on uneven terrain.  He noted that these conclusions were "based purely on his orthopedic evaluation," and that he did not take into consideration motivation or any other issues that the Veteran might have.

The Veteran testified before the Board in December 2002 in connection with his claims for service connection and entitlement to TDIU.  He testified to pain which was becoming progressively worse and radiated to his lower extremities.  He also testified to numbness and tingling in both lower extremities, but more pronounced on the right side.  He testified that his symptoms caused him to walk with a limp and, sometimes, prevented him from walking at all.  He did not discuss any ongoing problems with urinary incontinence.

He testified before the Board again in November 2005, also in connection with service connection and increased rating (including TDIU) claims.  With respect to symptoms of his back disability, the Veteran testified that he had urinary incontinence and erectile dysfunction, but did not discuss onset or frequency.  He also stated that he had not worked since the 1989 on-the-job injury to his head.  He stated in his testimony that he had tried to obtain employment, but when he revealed his medical history (including the back injury, head injury, a neck injury, and high blood pressure) potential employers would tell him he was an insurance risk and would not hire him.

A private physician, Dr. G.B., also provided testimony at the November 2005 Board hearing.  The physician testified that imaging results beginning in 1996 show definitive degenerative changes at the L5-S1 level and are consistent with the symptoms of pain, weakness, and numbness reported by the Veteran in earlier treatment records and in his testimony.  The physician opined that the Veteran was unable to work due solely to his lumbar spine disability.  He indicated that the earlier, 1996 employability opinion by the VA examiner supported his conclusion, but he did not provide any additional rationale beyond the fact of unemployment since 1989.

Subsequent to that Board hearing, Dr. G.B. submitted a November 2005 report on his independent medical evaluation in which he reiterated his above conclusions and included a detailed summary of the Veteran's medical history that he felt particularly relevant.  Notably, the only medical record during the relevant time period that he identified that mentioned erectile dysfunction or urinary incontinence was the 1992 reference noted above.  The private physician did not discuss the frequency or severity of the urinary incontinence, nor did he provide any opinion regarding the severity of the back injury or the radicular/neurological symptoms associated with that injury.  He again stated an opinion that the Veteran's service-connected back disability rendered him unemployable since 1987.  He reasoned that the Veteran had advanced degenerative arthritis during that period (which he opined warranted a 60% disability rating), was unable to perform physical labor, had only a high school education, and was not otherwise suited to sedentary employment.

The record also contains a November 2015 private retrospective opinion by Dr. E.T., a licensed psychologist and rehabilitation counselor.  The private psychologist provided an overview of the Veteran's medical and social history.  She stated that "[h]e does not possess any transferrable skills to sedentary work."  The report next includes an assessment of the Veteran's current psychological status, opining that the Veteran's psychological symptoms result in "social, personal and occupational impairment."  (The Board notes that the Veteran is not service-connected for any acquired psychological disabilities.)  The private psychologist then states the question for consideration:  Whether the Veteran was totally disabled and individually unemployable due solely to service-connected conditions prior to October 4, 2001, and, if so, as of what date?  The following seven pages of her report consist of summaries of the available medical records.  Thereafter, she offers an opinion that the Veteran "was totally disabled based on his service-connected orthopedic/neurological problems related to his low back since 1987."  She notes the presence of degenerative disc disease at the L5-S1 level and the Veteran's complaints of persistent low back pain radiating to his right lower extremity.  She identifies a note indicating persistent back and right leg pain with little relief from pain medication.  She also mentions a 1987 note indicating "very bad pain in right hip and low back, chronic problems since service injury, difficulty walking."  She noted the Veteran's 1989 on-the-job injury and recounted his post-service earnings.  She then reiterates her opinion that the Veteran was not able to maintain or sustain substantial, gainful work activity subsequent to 1987.

Dr. E.T. also provided testimony at the December 2015 Board hearing.  She testified that the Veteran had worked in physical labor, as a meter reader, and as a driver, but had no skills that were transferrable to sedentary employment.  When asked about the Veteran's symptoms, she testified that "he had difficulty with sleep patterns, falling asleep and staying asleep."  She mentioned awakening from pain, restlessness, "bouts of irritability", anger, and difficulty concentrating.  She restated her opinion on employability and explained that it was based on "very bad pain in his right hip and low back" as well as his employment history.  She referred to the rationale in her November 2015 report as support for her conclusion.

The Veteran and his wife also provided pertinent lay testimony at the December 2015 Board hearing.  The Veteran testified that he had bladder incontinence in 1991 for which he wore "brief stitching".  He testified that he had to use the restroom five or six times including during the night.  He testified that he had to change the padding more than three or four times a day.  He also testified that, at that time, he had back pain that interfered with his ability to walk and erectile dysfunction.  He took pain pills which, he stated, prevented him from being able to work.  His wife gave similar testimony.  She testified that the Veteran had urinary incontinence "maybe once out of the week[, but] no more than two times out of the week."  She confirmed that he used absorbent padding.  She also recounted his medications and stated the pain medication made him "irritable" and would cause him to sleep "a lot."


Analysis

The Veteran and his representative argue that he should be assigned a 60 percent rating for service-connected residuals of a lumbar spine injury, to include DDD, since the date of his increased rating claim in August 1991.  In support of this argument, they submitted a November 2005 private independent medical evaluation from Dr. C.N.B. who reviewed the Veteran's claims file and opined, "[I]t is my opinion that [the Veteran] has been assigned an incorrect medical diagnostic code for his spine injuries since 1981 as he should have been assigned the medical diagnostic sub code of 60% under code 5293 category in 1981." 

The Board observes that the Veteran would not be entitled to a 60 percent rating in 1981 because there is a final Board decision dated in June 1991 that denied his claim for an increased rating greater than 20 percent for service-connected residuals of a lumbar spine injury.  The private physician does not allege in his September 2005 opinion that there was CUE in the June 1991 Board decision.  Nor is CUE otherwise raised by the record.  Thus, the earliest the Veteran could have been rated 60 percent under DC 5293 is after June 6, 1991.

The Board notes that the assignment of a particular DC is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  Here, the Board has considered all applicable Diagnostic Codes in effect at the time, including DC 5292, 5293, and 5295.  

Under DC 5292, the only higher rating available is a 40 percent rating for "severe" limitation of motion.  The medical evidence indicates the Veteran's limitation of motion was no worse than 50 degrees of forward flexion and 20 degrees of extension, even on repetition and with consideration of DeLuca criteria.  The Board does not find range of motion testing prior to October 4, 2001 indicative of "severe" limited motion.  See 38 C.F.R. § 4.71a, DC 5292 (2002).  In fact, the March 1999 VA examiner found the Veteran uncooperative with range of motion testing although the Veteran could forward flex to 90 degrees as evidenced by his ability to sit fully upright.  

While a limitation of motion to 50 degrees is significant, the Board finds it does not amount to severe limitation of motion under the pre-2001 regulations.  Compare 38 C.F.R. § 4.71a, DC 5292 with 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2014) (providing for a 20 percent rating where forward flexion of the spine is greater than 30 degrees but less than 60 degrees and for 40 percent rating where forward flexion is less than 30 degrees).  The Board wants to be clear that it has not concluded that the pre-2001 criteria precisely map the range of motion guidelines of the post-2001 criteria, but only notes the more recent criteria, which were adopted to provide more objective standards, because they are consistent with the Board's conclusion (based solely on the pre-2001 criteria) that the Veteran's measured forward flexion of from 50 to 90 degrees during the period under consideration more closely approximates "moderate" rather than "severe" limitation of motion.  As noted above, the terms "moderate" and "severe" are not defined, so the Board is directed to reach an equitable and just determination.  The Board finds that "moderate" is the more appropriate categorization of the Veteran's limitation of motion.  Therefore, he does not meet the criteria for any rating higher than 20 percent under DC 5292.

The Board will next address DC 5295.  Here, again, the maximum schedular rating for this diagnostic code is 40 percent.  Medical evidence notes muscle spasm, tenderness, and decreased mobility on prolonged sitting, standing, or walking.  It does not show "severe" lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  See 38 C.F.R. § 4.71a, DC 5295 (2002).  

For example, the April 1993 private orthopedic consultation revealed normal spine alignment, tenderness around the thoracolumbar spine region, no muscle spasm, moderate limitation of motion, and present knee and ankle jerks.  The November 1996 VA examination revealed no postural abnormalities or fixed deformities, moderate limitation of motion, normal motor strength, and a pinprick test that showed sensation was intact.  The March 1997 VA examination revealed mild to moderate tenderness over the lumbosacral spine, no postural abnormalities or fixed deformities and moderate limitation of motion.  Severe DDD was diagnosed; however, the Veteran's neurological examination was normal.  On March 1999 VA examination, the examiner was unable to evaluate properly the Veteran's range of motion but noted that he had some tenderness and muscular spasms in the lumbosacral spine and his posture was abnormal in that there was a mild loss of lumbar lordosis.  The Veteran's motor function was normal.  Noting that some neurological impairment was shown during the Veteran's leg raising test, the examiner also observed that the remainder of the neurologic examination was intact and there were no other signs of radiculopathy shown.

The Veteran's symptoms did not meet or more closely approximate the criteria under DC 5295 for any rating higher than his currently assigned 20 percent rating.

This leaves DC 5293 which permits schedular ratings of 20 percent for "for moderate, recurring attacks", 40 percent for "severe [IVDS], recurring attacks with intermittent relief", and 60 percent "for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief."  38 C.F.R. § 4.71a, DC 5293 (2001).

The above described medical evidence, at minimum, establishes moderate, recurring attacks of IVDS.  The Veteran has been assigned a 20 percent rating already, so the question is whether his symptoms more closely approximate the criteria for either of the higher ratings under DC 5293, that is either "severe" IVDS "with intermittent relief" or "pronounced" IVDS with sciatic neuropathy and other neurological symptoms "with little intermittent relief."

The Board notes that paraspinal muscle spasms are contemplated by the 20 percent rating assigned for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD, prior to October 4, 2001 under DC 5295.  This period of time includes "the February 1992 VA medical note of spasm" which both parties highlighted in the September 2010 and September 2015 JMRs.  See also 38 C.F.R. § 4.71a, DC 5295. 

The Board acknowledges the Veteran's argument that his disability is more appropriately evaluated under DC 5293, and that his symptoms at that time, particularly spasms, warrant him a rating of 60 percent under the criteria, prior to October 4, 2001.  As noted previously, the assignment of a particular DC is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.   Here, the Board finds that, when rated under DC 5293, a 40 percent rating (but no higher) was warranted from February 20, 1992, but no earlier, for his back disability.

As noted previously, a rating of 40 percent under DC 5293 is warranted for severe, recurring attacks with intermittent relief, and a rating of 60 percent is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief.  

On several occasions, the Veteran was noted to suffer from spasms.  See February 1992 VA medical note of spasm; March 1999 VA examination; but see, e.g., April and May 1993 examinations (no evidence of paravertebral muscle spasm and negative straight-leg testing).  In addition, the Veteran had present ankle jerk on examination in July 1991, February 1992, April 1993, March 1997 and October 2001.  Furthermore, although the Veteran demonstrated abnormal neurological findings at the time, there is no indication that prior to October 2001 the Veteran's symptoms were pronounced with little intermittent relief.  For example, in November 1996, the Veteran's motor strength was 5/5 and the examiner opined that while this disability had "significantly decreased [the Veteran's] ability to do manual labor . . . it should not necessarily prevent him from working at sedentary occupations."  In March 1997, the Veteran had no postural abnormalities or fixed deformities, his motor strength was 5/5 and his reflexes were symmetrical.  In March 1999, although there was evidence of straight leg raising impairment, the remainder of the neurologic examination was intact, without other signs of radiculopathy.  In October 2001, the Veteran's deep tendon reflexes were normal, motor strength was normal, and sensory examination was intact.  

The Board finds that the medical evidence, even when considered with lay statements, does not show that the symptomatology more closely approximates the criteria necessary to warrant a 60 percent rating under DC 5293, prior to October 4, 2001.  But, giving the Veteran the benefit of the doubt, the Board does find that the Veteran's symptoms and functional limitations did more closely approximate the criteria for a 40 percent rating under DC 5293.  Specifically, as will be discussed, the records indicate occasional muscle spasms, urinary incontinence, and radiculopathy, which is suggestive of "recurring" symptoms of IVDS "with intermittent relief."

The September 2015 JMR concluded that the Board failed to adequately address "the February 1992 VA medical note and the relevance of the veteran's incontinence and impotence."  Because the Veteran has not been assigned a compensable rating for these service-connected issues, the rule against pyramiding is not implicated.  See September 2015 JMR; 38 C.F.R. § 4.14.  

However, the Board finds that the evidence of impotence is not sufficient to warrant a 60 percent rating under DC 5293.  The record does not indicate the frequency or severity of the impotence, though it does establish that he took medication for the condition.  Service-connected impotence may entitle veterans to special monthly compensation (and this Veteran was awarded SMC), but cannot on its own form the basis of a compensable rating.  See 38 C.F.R. § 4.115b, DC 7522 (requiring deformity of penis in addition to loss of erectile function for a compensable rating); 38 C.F.R. § 3.350 (a)(1) (setting forth criteria for special monthly compensation for loss of use of creative organ).

The Board does not interpret the pre-2001 rating criteria as instructing that impotence due to IVDS would necessarily entitle a veteran to a 60 percent rating under DC 5293 because it is an "other neurological finding."  Rather, the rating criteria under DC 5293 require "pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief."  38 C.F.R. § 4.71a, DC 5293 (2001) (emphasis added); see Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of conjunctive "and" indicates all criteria must be met).

"[O]ther neurological findings" are one part of a multi-part criteria which include "pronounced" IVDS that results in pain and other symptoms "with little intermittent relief."  As discussed above, the Board has determined that the Veteran's IVDS was not pronounced during the period under consideration and that the Veteran's symptoms, though recurring, were not most accurately characterized as "with little intermittent relief."  Rather, his muscle spasms and neurological abnormalities other than impotence were only sometimes present on examination and, when mentioned at all, were often described as occasional.  For these reasons, the Board finds that the Veteran's service-connected impotence, which was noted in February 1992, does not justify awarding either a 40 percent or 60 percent rating under DC 5293.  The impotence as an abnormal neurological finding only meets one portion of the multi-factorial criteria, and that portion is also met by the "demonstrable muscle spasm".   [... "with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. . ."].  The Veteran's symptoms fail to meet or more closely approximate the other portions of the criteria, specifically, the "pronounced" and "with little intermittent relief" requirements.

Likewise, the Veteran's service-connected urinary incontinence does not warrant assigning an earlier effective date for the 60 percent rating of his back disability.  Again, the presence of urinary incontinence as an abnormal neurological finding by itself only satisfies one element of the criteria, and that element has also been satisfied by findings of muscle spasm.  [... "with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. . ."].   A finding of urinary incontinence or muscle spasm alone is not sufficient to warrant a 60 percent rating where the criteria for that rating also require "pronounced" IVDS "with little intermittent relief."  Rather, the Board must address whether the medical evidence regarding urinary incontinence, when considered along with the other symptoms such as muscle spasms, radiating pain, etc., warrants finding that his IVDS is pronounced with little intermittent relief.

In weighing the evidence, the Board finds it is against concluding that the Veteran's urinary incontinence, muscle spasms, and other neurological symptoms were persistent, pronounced, and "with little intermittent relief."  In fact, the greater weight of the evidence establishes that the Veteran's symptoms of urinary incontinence (as well as muscle spasms and other neurological symptoms) were occasional.  For example, the Veteran had no bowel or bladder complaints in July 1991 or January 1992 and the records did not indicate the presence of muscle spasm at that time.  In February 1992, the Veteran reported occasional urinary incontinence and muscle spasms, a positive straight-leg test, and evidence of chronic cauda equine syndrome were all present.  However, in April and May 1993, examinations failed to reveal evidence of paravertebral muscle spasm, straight-leg testing was negative, and there was no mention of other neurological symptoms (e.g. urinary incontinence).  The November 1996 VA examination noted lower extremity numbness that was occasional and, again, no bowel or bladder abnormalities were noted.  Similarly the March 1997 VA examination indicated occasional weakness/numbness and explicitly indicated the absence of bowel and bladder incontinence.  Other neurological testing at that time was also normal.  The medical evidence has been summarized more fully above, but these examples demonstrate that the Veteran's radicular and neurological symptoms have often been described, when noted, as occasional which the Board finds more closely approximate "recurring" symptoms "with intermittent relief" rather than with "little intermittent relief."  Similarly, the description of symptoms suggests moderate to severe IVDS rather than "pronounced" IVDS.

The Board notes that the November 2005 and November 2015 private opinions both rely on the February 1992 treatment record as indicating urinary incontinence, but the record specifies occasional urinary incontinence and treatment records for many years thereafter are either silent regarding urinary incontinence or explicitly note the absence of bladder symptoms.  See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder).  The Board gives no weight to any implied opinion or conclusion by these private medical experts that the Veteran had urinary incontinence that was severe, pronounced, or that was more frequent than occasional (i.e. "with little intermittent relief") as any such opinion or conclusion is based on a single contemporaneous recordation of the Veteran's complaint and the Veteran's decades-later testimony, but fails to acknowledge or discuss the many years when such complaints were absent in the record.

The Board also acknowledges the Veteran's testimony that his urinary incontinence was continuous throughout the period, required absorbent materials, and resulted in frequent urgency (five to six times per day, waking at night).  See, e.g., December 2015 Board Hearing Testimony.  The Board notes that his wife testified that the urinary incontinence was once or at most twice per week.  However, the Board finds that the contemporaneous medical records are more reliable and more credible, hence more probative, than the contrary lay recollections many years after the fact.  See Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (silence in medical record may be weighed against lay testimony); Caluza, 7 Vet. App. at 511 (noting multiple factors affecting credibility of a witness, including demeanor, tone, consistency with other evidence, and interest and bias); accord Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may consider failure to report symptoms for many years).

Although the February 1992 complaint of occasional urinary incontinence is relevant to the question of whether the criteria for a higher rating under DC 5293 was warranted during the period under consideration, the Board finds it does not tip the balance in favor of finding that the Veteran's symptoms more closely approximate the criteria for a 60 percent rating under DC 5293.  Specifically, the Board finds as a factual matter that the muscle spasms, urinary incontinence, and other neurological abnormalities experienced by the Veteran were only occasional during the period under consideration and that the Veteran's IVDS was not "pronounced" during that time.

In summary, the Board finds that, as of February 20, 1992, the Veteran's symptoms warranted a 40 percent rating under the spine diagnostic criteria in existence prior to October 4, 2001, but did not warrant any rating greater than 40 percent during the period under consideration.  The Board has considered all potentially applicable diagnostic codes.

Thus, based on all the evidence of record, the Board grants entitlement to a disability rating of 40 percent under DC 5293 with an effective date of February 20, 1992.  That is the earliest date during the appeal period that the evidence establishes occasional urinary incontinence and muscle spasms (i.e. neurological symptoms "with intermittent relief").  Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury or to any higher rating during the period under consideration is otherwise denied.

Extraschedular Considerations

The Board has considered whether an extraschedular evaluation is warranted for the Veteran's back disability during the period under consideration, i.e. whether an earlier effective date would be warranted based on entitlement to an extraschedular rating in excess of the currently assigned ratings.  In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2015).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111, 118-19 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id. 

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected back disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The greater weight of the evidence establishes that the Veteran's disability picture during the period under consideration is adequately contemplated by the applicable schedular rating criteria, which have been discussed above with respect to the issue on appeal.  

The Veteran has not expressly raised the matter of entitlement to an extraschedular rating.  In any case, the Board has considered whether the criteria for higher schedular ratings were met, but, as discussed in the merits section above, the Veteran's symptoms most closely approximate, and are adequately described by, the rating criteria for a 20 percent schedular rating prior to February 20, 1992, and a 40 percent rating thereafter.  The Board finds no evidence that his occupational and functional impairments were greater than those with back symptoms (including the associated neurological impairments) of the same or similar type and severity.  Interference with employment is not a factor in the first step of the Thun analysis and, so will not be further discussed.  (It is, however, discussed in connection with the TDIU claim below.)

The Board also finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities (back, incontinence of the bladder, and impotence), and that referral for extraschedular consideration is not warranted under the circumstances of this case.  Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014).  The evidence is against finding that the combination of his service-connected disabilities produces a disability level or symptomatology that is not reasonably described by the schedular rating criteria.  On the record now before the Board, an earlier effective date for either the 40 or 60 percent ratings is not warranted based on entitlement to an extraschedular rating in excess of the currently assigned ratings (or entitlement to referral for consideration of any such rating).

IV.  Entitlement to an Effective Date Earlier than October 4, 2001 for the Grant of TDIU

The Veteran seeks entitlement to an effective date earlier than October 4, 2001, for the grant of TDIU.  As noted in the September 2015 JMR, the issue of entitlement to an earlier effective date for the award of TDIU is inextricably intertwined with the increased rating claim for the back disability and, so, the Court remanded the TDIU issue for adjudication by the Board.  As noted in the Introduction, the extraschedular aspect of the claim had previously been remanded to the AOJ.  However, the requested development and readjudication was completed, so that extraschedular TDIU claim is also properly before the Board.  In short, the Board has before it the issue of entitlement to an effective date earlier than October 4, 2001, for the grant of TDIU (whether on a schedular or extraschedular basis).

As discussed below, the Veteran's disability rating during the period in question did not meet the threshold for a grant of TDIU on a schedular basis.  Therefore, the determinative issue before the Board is whether the Veteran is entitled to an effective date earlier than October 4, 2001, for the grant of TDIU on an extraschedular basis.

Governing Law: TDIU

Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one-year period, an increase in a disability was factually ascertainable.  See 38 C.F.R. § 3.400(o)(1)-(2).  However, because the Board denied entitlement to a TDIU in a final June 6, 1991 decision, the Board will now consider the evidence received since that decision.  

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 3.340 , 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a).  

A TDIU may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).  It is that aspect of the appeal currently before the Board.

In September 1989, when the RO denied the Veteran's claim of entitlement to a TDIU, the Veteran did not meet the TDIU rating percentages.  Service connection was in effect for the following disorders:  the residuals of lumbar injury, rated as 20 percent disabling, incontinence of bladder, rated noncompensably disabling, and impotence, rated noncompensably disabling.  The Board has now granted an increase to 40 percent for the residuals of lumbar spine injury effective February 20, 1992.  The other ratings for this period remain noncompensable.

In February 2007, the RO raised the Veteran's rating to 60 percent for his service-connected residuals of a lumbar injury with degenerative disc disease.  The RO also granted the Veteran's claim for a TDIU.  Those ratings became effective October 4, 2001, because that was the earliest date at which the Veteran met the rating percentage criteria for a TDIU.  See 38 C.F.R. § 4.16(a).  Notwithstanding the increased rating granted above, October 4, 2001, is still the earliest date on which the Veteran met the rating percentage criteria for a TDIU, so an earlier effective date for a TDIU on a schedular basis is not warranted.

The crux of the matter in any TDIU claim (schedular or extraschedular) is whether the Veteran was unemployable due to service-connected disability.  In this case, the relevant time period is from June 6, 1991, when the Board issued a final decision on a prior increased rating (TDIU) claim and October 4, 2001, the effective date assigned when the TDIU claim was granted.

Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1 Part VI, Para. 7.14(a) (Change 52, Aug. 26, 1996).  This suggests a living wage.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).  The ability to work sporadically or to obtain marginal employment is not substantially gainful employment.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).

Any consideration as to whether the Veteran is unemployable is a subjective one, that is, one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Prec. Op. VA Gen. Counsel 75-91 (Summary of Precedent Opinions of the General Counsel, 57 Fed. Reg. 2314, 2317 (1992)).  With respect to total disability ratings, the ability to overcome the handicap of disability varies widely among individuals.  The rating, however, is based primarily upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15 (2015).  

Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to TDIU.  38 C.F.R. § 3.341(a), 4.19 (2015).  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Factual Background

The Board has previously set forth a summary of the medical evidence and will refer to that evidence in the analysis below.  In addition, the Board will summarize some additional evidence particularly relevant to the TDIU claim.  

During VA outpatient treatment in February 1992, the Veteran reported that he was unemployed due to back pain.  

On his formal claim for a TDIU (VA Form 21-8940, dated in September 1995), the Veteran reported that he had one year of college education and that he had not worked since February 2, 1989.  He reported that he had sustained an injury affecting his head, back, neck, spine, shoulder, and elbow.  

Evidence received in October 1995 shows that in October 1990, the Veteran was granted Social Security disability benefits.  The primary diagnosis was an affective (mood) disorder, and the secondary diagnosis was sprains and strains.  It was noted that the Veteran's disability had begun February 1, 1989.  In conjunction with his Social Security application, the Veteran reported the following work experience:  mobile home construction from September 1987 through January 1989; truck driving from August 1983 to November 1986; utility work with television or telephones from September 1978 to December 1981; and a city water meter reader from August 1976 to August 1978.  In addition, he stated that he had attended barber school from February 1982 to June 1983.  

In April 1993, the Veteran was examined by G. S. W., M.D. to determine the Veteran's injured worker status in conjunction with his claim for workman's compensation.  On February 1, 1989, while at his job site, the Veteran was struck in the head by a piece of heavy scaffolding.  The impact caused him to fall and strike his right elbow.  He also reported pain in the low back area.  The diagnoses were strain/sprain of the cervical spine superimposed over degenerative changes; sprain/strain of the right shoulder with impingement syndrome; musculoligamentous sprain/strain of the thoracolumbar spine superimposed over degenerative changes and disc protrusion at L5-S1 per MRI scan; and right olecranon bursitis with possible fracture of the olecranon spur.  Following the examination, Dr. W. considered the Veteran to be an injured worker in need of vocational rehabilitation.  In November 1993, Dr. W. reported that training as a smog technician was a reasonable vocational goal.  

In November 1996, the VA examined the Veteran to determine the severity of his service-connected lumbar spine disorder.  Following the examination, the VA examiner stated that the Veteran's lumbar spine disability would significantly decrease his ability to perform manual labor but that it would not prevent him from working at sedentary occupations.  

In June 1998, the Veteran's Social Security disability benefits were continued, primarily as a result of affective (mood) disorder.  The secondary diagnosis was autistic disorder and other pervasive developmental disabilities.  

During a March 1999 VA examination, the Veteran reported that he had difficulty dressing himself and took baths instead of showers.  He reported that he was unable to perform any of the following actions:  cooking, vacuuming, long-distance walking, driving, shopping, taking out the trash, pushing a lawn mower, climbing stairs, or gardening.  He stated that he refrained from any and all activities that would require prolonged sitting, standing, walking, bending, turning, and/or lifting.  He stated that he had been unemployed since February 1989.  

The Veteran was not cooperative with the examination of his spine.  He would not comply with range of motion testing of the lumbar spine; and, therefore, the  examiner was unable to comment on whether the Veteran had painful motion or weakness of the lumbar spine.  Following the examination, the diagnoses were the residuals of a lumbar injury, lumbosacral strain, and degenerative disc disease.  The examiner stated that the degenerative disc disease was severe.  The examiner noted that the effect on the Veteran's usual occupation was not pertinent, because he was unemployed.  The examiner reported that those disorders mildly affected the Veteran's activities requiring prolonged standing, walking, sitting, repetitive bending, or lifting.  

In November 2005, C. N. B., M.D., opined that the Veteran had been unemployable since 1987.  Dr. B. noted that the Veteran had a high school education and manual labor training but did not have the educational abilities to perform alternative work.   

In December 2014, following a review of the evidence, including records from the Social Security Administration and the opinion from Dr. B., the Director of the VA Compensation and Pension Service concluded that a TDIU on an extraschedular basis was not warranted.

The other employability opinions (e.g. private opinions by Dr. G.B. and Dr. E.T.) already have been summarized at length above.

Analysis

The Veteran seeks entitlement to an effective date earlier than October 4, 2001 for the assignment of a TDIU.  The Veteran asserts that he has been found disabled by the Social Security Administration and cites opinions from Dr. C. N. B., Dr. G.B., and Dr. E.T. that he has been too disabled to work since 1987.  Therefore, he maintains that an effective date prior to October 4, 2001 for a TDIU is warranted.  However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim.  Accordingly, the appeal will be denied.  

The Board gives no weight to the Veteran's own statements that he was unemployed due to back pain, such as in February 1992 and at the March 1999 VA examination.  His opinions that back pain prevented employment are not consistent with the competent, objective findings in the medical records.  For example, at the March 1999 VA examination, the Veteran  reported that he refrained from any and all activities that would require prolonged sitting, standing, walking, bending, turning, and/or lifting, but the examiner determined after physical examination that those functions were only mildly impaired.  Additionally, he has made other conflicting statements which reduce his overall credibility and the record establishes that numerous other factors affected his employability at that time which the Veteran's statements fail to address or even acknowledge.

The Board gives no probative weight to the award of Social Security disability benefits and the medical opinions on which that award was based.  The award and the opinions are primarily based on nonservice-connected conditions (e.g. affective (mood) disorder, autistic disorder, other pervasive developmental disabilities, and sprains and strains of not only the back, but also the neck, shoulder, and elbow).  Therefore, the favorable Social Security determination has no probative weight on the issue of whether the service-connected disabilities alone caused the Veteran's unemployability.  (The Board notes that the legal standards are also not identical.)  This evidence of unemployability due primarily to nonservice-connected disabilities also supports the Board's determination that the fact of the Veteran's unemployment during the period is entitled to no probative weight in favor of his claim.  See Van Hoose, 4 Vet. App. at 363.  In other words, the evidence indicates nonservice-connected reasons for his actual unemployment, so the fact of unemployment does not weigh for or against the TDIU claim.

Although the private experts who have given favorable opinions have all stated that the Veteran was unemployable due to his service-connected lumbar spine disorder as far back as 1987, the preponderance of the evidence is against such a finding.  The evidence shows that the Veteran had been employed or been in school since he left the service and that he had secured and maintained a job in mobile home construction from September 1987 through January 1989.  The probative evidence, such as his Social Security records, shows that he left that position following an injury on February 1, 1989.  Although that injury reportedly affected multiple areas, including the thoracolumbar spine, the primary injury was to his head.  His Social Security records show that he became disabled at the time of that injury and that the primary reason for his award of disability benefits involved his mental health.  The evidence does not show that the Veteran left employment due to a low back disability or that such disability caused him to be unemployable.  Despite its significance, none of the private experts have meaningfully addressed the role of the Veteran's February 1989 injury with respect to his claim for a TDIU.  (For example, Dr. E.T. mentioned the accident, but did not discuss its relevance or separate out the effects on employability of that accident from the service-connected disabilities.)

Dr. C.N.B.'s opinion is entitled to no probative weight.  In addition to the above discussed deficiency, specifically the conflict between the opinion that the Veteran was unemployable since 1987 conflicts and his actual employment until 1989, the opinion otherwise fails to provide a convincing rationale connecting facts to her conclusion.  The opinion fails to make any attempt to separate the effects of nonservice-connected conditions from service-connected disabilities.

With respect to Dr. G.B., in addition to the above deficiencies, his opinion contains very little rationale beyond the fact of unemployment and the 1996 VA examiner's opinion that sedentary employment was possible.  The Board assigns it very little independent probative weight due to its lack of a reasoned rationale that is supported by the underlying medical and employment history.

The Board gives no probative weight to the opinion of Dr. E.T, a psychologist and vocational rehabilitation expert.  The Board interprets her report as placing undue significance on the Veteran's nonservice-connected mental health issues.  Also, she relies heavily in her rationale on the fact of unemployment (and low earnings), rather than making any attempt to differentiate the various effects of the Veteran's nonservice-connected disabilities on his physical and mental capabilities from the effects of his service-connected disabilities (primarily the back disability).  She fails to discuss or account for the Veteran's post-high school education and training (e.g. one year of college, barber school, recommendation for vocational training).  In short, Dr. E.T.'s report primarily consists of a summary of medical evidence (relating to both service-connected and nonservice-connected conditions) and employment history followed by a conclusion, but fails to provide any coherent rationale that connects the recited evidence with her conclusion or that accounts for the evidence that undercuts her conclusion.

In summary, the opinions of record that support the Veteran's claim have very little probative weight, individually and cumulatively.

On the other hand, the opinions of record against the Veteran's claim are entitled to significant probative weight.  For example, the 1993 reports from Dr. W. and the report of the 1996 VA examination essentially concur that the Veteran should be able to perform more sedentary work.  Not only does the Veteran have a year of college education and formal training as a barber, his work history shows several marketable skills.  Indeed, Dr. W. recommended the Veteran for vocational rehabilitation and even proposed a specific vocation.  Such recommendations are consistent with a finding that the Veteran was capable of substantially gainful employment.  Moreover, the Veteran testified in November 2005 that he had attempted to obtain employment (implying he believed he was physically capable of employment), but that he was unable to secure employment because he was an insurance risk (rather than that he was unqualified or physically incapable of the work).  This, too, supports finding that the Veteran had marketable skills and the physical and mental capabilities (excluding the effects of nonservice-connected disabilities) to obtain and maintain some form of sedentary or non-physical gainful employment.

When the foregoing reports are considered in conjunction with the evidentiary review and conclusion of the Director of the VA Compensation and Pension Service, the Board finds the preponderance of the evidence against the claim that the Veteran was unemployable due to his service-connected disabilities, prior to October 4, 2001.  Therefore, he does not meet or more nearly approximate the extraschedular criteria for an earlier effective date.  Accordingly, an earlier effective date for a TDIU is not warranted, and the appeal is denied.  

In arriving at this decision, the Board has considered the doctrine of reasonable doubt.  However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim.  In this case, the preponderance of the evidence is against the Veteran's claim.  Therefore, the doctrine of reasonable doubt is not applicable.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.3 (2015).








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ORDER

Entitlement to an effective date of February 20, 1992, but no earlier, for a 40 percent rating for residuals of a lumbar spine injury, to include degenerative disc disease, is granted, subject to the laws and regulations governing the award of monetary benefits.

Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include degenerative disc disease, is denied. 

Entitlement to an effective date earlier than October 4, 2001 for the grant of TDIU on either a schedular or an extraschedular basis is denied.



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs