Citation Nr: 1612878 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 09-04 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating higher than 10 percent prior to July 28, 2010, and a rating higher than 20 percent since July 28, 2010, for a service-connected back disability (degenerative disc disease of the lumbar spine). 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from April 2006 to May 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, and an August 2010 decision of the RO in Hartford, Connecticut. Jurisdiction is with the Hartford, Connecticut RO. In an August 2010 rating decision, the RO granted a 20 percent rating for degenerative disc disease of the lumbar spine effective July 28, 2010. In August 2012, the Veteran testified in a video-conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In April 2012 and April 2014, the Board remanded this case for further development and it is now ready for disposition. The record reflects that after the February 2015 Supplemental Statement of the Case (SSOC), additional relevant evidence was added to the Veteran's claims file. No subsequent SSOC was issued, but this is not necessary because in March 2016 the Veteran, through his representative, submitted a written waiver of initial RO consideration of the new evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2015). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Prior to July 28, 2010, the most probative evidence demonstrates that the Veteran's back disability was manifested by X-ray evidence of degenerative disc disease, with limitation of forward flexion of the thoracolumbar spine primarily greater than 60 degrees, and a combined range of motion of the thoracolumbar spine of no less than 250 degrees. 2. Since July 28, 2010, the most probative evidence demonstrates that the Veteran's back disability was manifested by X-ray evidence of degenerative disc disease, with limitation of forward flexion of the thoracolumbar spine to no less than 40 degrees, and a combined range of motion of the thoracolumbar spine of no less than 175 degrees. 3. The Veteran's service-connected disabilities are a back disability, rated as 20 percent disabling; a right leg disability, rated 20 percent disabling; a left leg disability, rated 10 percent disabling; a right shoulder disability, rated 10 percent disabling; and tinnitus, rated 10 percent disabling; his combined rating is 60 percent. 4. Factors warranting a referral for TDIU on an extraschedular basis are not present. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent prior to July 28, 2010, and a rating higher than 20 percent since July 28, 2010, for a back disability, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, DC 5243 (2015). 2. The criteria for establishing entitlement to TDIU are not met; referral for TDIU on an extraschedular basis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16(a),(b) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). The RO sent the Veteran letters in June 2007 and May 2014, which informed him of all three elements required by 38 C.F.R. § 3.159(b) and of the criteria for entitlement to an increased rating for his service-connected back disability and a TDIU. As such, the VCAA duty to notify was satisfied. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, and the written assertions of the Veteran. No outstanding evidence has been identified that has not otherwise been obtained. Additionally, the Veteran testified at a hearing before the undersigned. A hearing officer who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative, the undersigned asked relevant questions concerning the current severity of his service-connected back disability and his TDIU claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). Next, relevant VA examinations were obtained in November 2007, July 2010, January 2013, and February and September 2015, pursuant to the Board's April 2014 remand. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's back disability since the most recent VA examinations. The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provide the information necessary to evaluate his service-connected disabilities. Under the circumstances, the Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2015). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2015). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, 25 Vet. App. 32. The intent of the Rating Schedule is 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. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran contends that his service-connected back disability is more severe than his initial 10 percent prior to July 28, 2010, and 20 percent rating since July 28, 2010, would indicate. Historically, in a January 2008 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine at L3-4 and L4-5 level (back disability) and assigned a 10 percent rating pursuant to Diagnostic Code 5243 (IVDS), effective May 20, 2007 (the day following separation from service). In August 2010, the RO increased the rating from 10 to 20 percent, effective from July 28, 2010 (the date of the VA examination showing a worsening of his back disability). However, since this increase did not constitute a full grant of the benefit sought, the higher initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Spine disabilities can be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2015). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2015). IVDS (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under DC 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1 (emphasis added). It is important for the Veteran to understand that his statements regarding bed rest cannot be used to provide him a higher evaluation under 5243. Turning first to orthopedic manifestations of the Veteran's disability, the service treatment records include a January 2007 report which includes a diagnosis of herniated discs at L3-L4 and L4-L5. An April 2007 report reflects a diagnosis of spinal stenosis. An examination revealed lumbosacral spine tenderness on palpation L5 area with no evidence of spasms. On November 2007 VA spine examination, the Veteran presented with complaints of chronic daily back pain. He had difficulty with prolonged sitting that affected his ability to drive and ride in a car on his worst days. He complained of being unable to sit erect. While standing, he had to shift his weight from one leg to the other. He complained of limitation of motion, especially flexion. Repetitive bending caused intolerable pain. He was no longer able to run, play volleyball, or ride horseback, but could use a cross-country trainer and elliptical 20 minutes, 3 times a week. His treatment consisted of physical therapy and anti-inflammatory and pain medications. He had not been employed since service. He had not had any incapacitating episodes in the past 12 months. He took pain medication as needed and attributed all limitations to pain as opposed to weakness, fatigue, or a lack of endurance. A January 2007 MRI indicated disc herniations at L3-4 and L4-5, with right lateral recess impingement at both levels and L3-4 stenosis. A November 2007 X-ray of the thoracic spine demonstrated a minimal anterior wedging of a mid-thoracic vertebral body, with minimal small marginal osteophytes in the thoracic spine region. On examination of the thoracolumbar spine, gait was normal and the Veteran had no trouble mounting or getting off of the examination table, except that he rolled into the decubitus position to get up from the supine. There was slight tenderness and very definite muscle tightness in the right paralumbar muscles and right sciatic tenderness. There was also tenderness over the vertebrae of the mid-thoracic spine without muscle spasm. Range of motion findings of the thoracolumbar spine revealed 75 degrees flexion with pain at 60 degrees, 40 degrees extension, 20 degrees right lateral bending with end point pain, 35 degrees left lateral flexion without pain, 35 degrees right rotation with end-point pain, and 45 degrees left rotation with end point pain. The combined range of motion was 250 degrees. After three repetitions, flexion was reduced to 73 degrees with 37 degrees extension and 17 degrees right lateral bending due to pain. The examiner diagnosed herniated disks L3-4 and L4-5 with electromyelogram (EMG) evidence of L5 radiculopathy and chronic right mid thoracic spine pain associated with anterior wedging of a mild thoracic vertebra. On July 2010 VA spine examination, the Veteran reported that since the last VA examination there had been no real improvement in pain. He complained of constant pain rated 8 to 10 out of 10 on the pain scale. He had continued difficulty with prolonged sitting. Pain improved slightly with medication. Review of the claims file revealed treatment on several occasions for residuals of boxing which he did as a hobby. His back disability was manifested by weakness, lack of endurance, and stiffness, but no fatigue. Following repetitive motion he tried to avoid forward bending. Treatment consisted of rest, medication, and a TENs unit. His back disability was aggravated by prolong sitting, bending, and lifting. Flare-ups were rated 9 out of 10 on the pain scale and occurred every 3 weeks lasting 1- 2 days. On examination, posture and gait were grossly normal. Range of motion measurements of the thoracolumbar spine revealed 40 degrees flexion, 30 degrees extension, 30 degrees left lateral flexion, 25 degrees right lateral flexion, 20 degrees left lateral rotation, and 30 degrees right lateral rotation. The combined range of motion was 175 degrees. Pain occurred throughout range of motion and was limited by pain following repetitive use or during flare-ups. There was no additional loss of function due to fatigue, weakness, lack of endurance, or incoordination during flare-ups. While there was mild tenderness, there was no evidence of spasm or weakness in the lumbar area. No postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of the back were noted. With regard to IVDS, the Veteran did not report any incapacitating episodes in the past 12-month period. The examiner diagnosed IVDS and ordered a repeat MRI of the LS spine. In August 2012, the Veteran testified that his back disability prevented him from physical employment and explained that he had difficulty with prolonged standing and sitting. He testified that his back disability had not improved. Pursuant to the Board's April 2014 remand, on February 2015 VA back conditions Disability Benefits Questionnaire (DBQ) examination, the Veteran did not report any flare-ups that impacted the function or his back or functional loss or impairment. Pain was noted, but neither pain nor range of motion contributed to any functional loss. Range of motion measurements revealed 60 degrees flexion and 30 degrees each of extension, right and left lateral flexion, and right and left lateral rotation. The combined range of motion was 210 degrees. Pain was exhibited on forward flexion, right lateral flexion, and right lateral rotation. There was no evidence of pain with weight bearing. There was no localized tenderness or pain on palpation of joints and/or soft tissue of the thoracolumbar spine. He was able to perform repetitive use testing with at least 3 repetitions with no additional loss of function or range of motion following repetitive use. With regard to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, the examiner was unable to say without mere speculation. The examiner explained that the Veteran subjectively reported pain when his back was used repeatedly over a period of time. However, this was not observed during the examination. There was insufficient objective evidence that would provide a reliable prediction of decreased functional ability when the joint was used repeatedly over a period of time. As such, the examiner could not predict the degree of further functional loss or decreased range of motion. In this regard, the VA examiner's statement and examination findings indicated that she had considered all of the evidence before her, and she indicated specifically that the additional limitation due to pain, weakness, fatigability, or incoordination with repeated use over a period of time could not be determined. The Board will therefore rely on her opinion in this regard. Jones v. Shinseki, 23 Vet. App. 382 (2009). During flare-ups, the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability. He did not have guarding or muscle spasm of the thoracolumbar spine. There was no evidence of ankylosis. With regard to IVDS, there had been no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive devices. Imaging studies demonstrated arthritis. The examiner diagnosed lumbar disc disease. The examiner opined that the Veteran's back disability impacted his ability to work. In this regard, he reported that he quit his job as an EMT due to the heavy physical work which caused a lot of back pain due to carrying heavy boards and lifting patients. However, he was a full-time student and considered becoming a PA. He continued to box, but said that boxing did not bother his back. On September 2015 VA back DBQ examination, the Veteran complained of worsening back pain since his last examination with the onset of some difficulties with post void residual with urination. He treated his pain with prescription strength NSAIDs. He reported flare-ups with standing and sitting for prolonged periods of time. With regard to functional impairment, he had increased pain, stiffness, and soreness with prolonged standing and sitting. Range of motion measurements revealed 60 degrees forward flexion, 20 degrees each of extension and right and left lateral flexion, and 30 degrees each right and left lateral rotation. The combined range of motion was 180 degrees. There was pain with range of motion. There was tenderness to the lower lumbar paraspinals as well as the bilateral SI joints. He was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There was no ankylosis of the spine. The examiner opined that he was unable to repeatedly bend, lift, stoop or carry/lift loads greater than 25 pounds; unable to stand or sit for periods greater than 30 minutes (to include driving); unable to perform heavy gardening or yard work involving push mowing, plowing, shoveling, and raking; and was unable to participate in sports that involved impact exercise, but could continue to use gentle yoga or boxing/rotational type without weights, as well as core and traction building exercises. While IVDS was diagnosed, the examiner stated that he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive devices. The examiner diagnosed degenerative arthritis of the spine and IVDS After review of all the evidence regarding the orthopedic manifestations of the Veteran's back disability, the Board finds that an initial rating in excess of 10 percent prior to July 28, 2010, and a rating in excess of 20 percent since July 28, 2010, is not warranted. A 20 percent evaluation is assigned for forward flexion greater than 30 degrees but not greater than 60 degrees, or a combined range of motion not greater than 120, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Prior to July 28, 2010, the most probative evidence of record does not indicate that the Veteran's back disability was manifested by forward flexion greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine no greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. Although the Veteran had pain at 60 degrees of flexion, pain alone does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (Aug. 23, 2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment. The Court agreed that pain alone as a basis for a higher rating would produce such "absurd results" as for example where a claimant who experiences very slight pain throughout the range of motion of the knee would receive a 50 percent disability rating under DC 5261 and a 30 percent disability rating under DC 5260, whereas a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to 20 degrees would only receive disability ratings of 20 percent and 30 percent respectively). While range of motion was slightly limited following repetitive use testing (flexion reduced from 75 to 73 degrees, extension from 40 to 37 degrees, and right lateral bending from 20 to 17 degrees), there is no evidence of record that the Veteran's forward flexion was limited to 60 degrees, or a combined range of motion of the thoracolumbar spine limited to 120 degrees, or evidence of muscle spasm or guarding enough to result in an abnormal gait or abnormal spinal contour. Accordingly, the 10 percent evaluation is warranted for noncompensable limitation of motion. From July 28, 2010, the most probative evidence of record does not indicate that the Veteran's back disability is manifested by forward flexion to 30 degrees or favorable ankylosis of the entire spine. Moreover, while range of motion was limited by pain following repetitive use testing on July 2010 VA examination, there is no evidence of record that the Veteran's forward flexion is limited to 30 degrees or that there is ankylosis of the entire spine. In addition, on February 2015 and September 2015 VA examination, there was no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. Accordingly, the 20 percent evaluation is warranted for limitation of motion. With regard to the DeLuca factors, the Board observes that the VA examiners and clinicians and physical therapists have noted the Veteran's complaints such as pain and weakness, and the Board has taken those complaints into consideration in its above discussion. However, the Board finds that the evidence does not support a finding that the Veteran's functional loss causes additional disability that approximates an initial 20 percent rating prior to July 28, 2010, or 40 percent rating since July 28, 2010. In sum, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 10 percent prior to July 28, 2010 or a rating greater than 20 percent since July 28, 2010, for the orthopedic manifestations of the Veteran's back disability. While the Board accepts the contentions of the Veteran that his thoracolumbar spine disability causes him to experience pain, providing the basis for the 10 percent and 20 percent findings, the Board has taken that into account in its consideration of the range of motion of the Veteran's thoracolumbar spine. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, greater ratings are not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. In sum, the Board finds that the orthopedic manifestations of the Veteran's thoracolumbar spine disability do not warrant an initial rating higher than 10 percent prior to July 28, 2010, or higher than 20 percent since July 28, 2010. Turning next to neurological manifestations of the Veteran's back disability, as a preliminary matter, in February 2015, the RO granted service connection for radiculopathy of the right leg and assigned a 10 percent rating, effective February 6, 2013. In October 2015, the RO granted service connection and assigned a 10 percent rating for radiculopathy of the left leg, effective September 28, 2015 and increased the rating from 10 percent to 20 percent for radiculopathy of the right leg, effective September 28, 2015. The Veteran did not appeal either decision or disagree with the ratings assigned for bilateral radiculopathy so this issue is not on appeal before the Board at this time. With regard to any remaining neurological symptoms and complaints related to his back disability, on November 2007 VA examination, he had no motor weakness, sensory loss, bladder or bowel incontinences, or sphincter problems or functional problems. On neurologic examination, reflexes were intact and sensory examination in the lower extremities was intact. On the July 2010 VA spine examination, he denied numbness, weakness, bladder or bowel complaints, and erectile dysfunction. There was no evidence of bowel or bladder functioning abnormalities. On the February 2015 VA DBQ spine examination, muscle strength testing and reflex examinations were normal. Sensory examination was normal with the exception of the right lower leg/ankle which indicated decreased sensation. Straight leg raising test results were positive. On the September 2015 VA spine examination, muscle strength testing for the right leg was active movement against some resistance. Sensory examination was normal. Straight leg raising indicated positive results. He was noted to have neurologic abnormalities or findings related to his back disability manifested by urinary complaints of post void residual. On September 2015 VA urinary tract DBQ, the Veteran endorsed complaints of post-residual since his last VA examination. However, the examiner did not diagnose any condition of the bladder or urethra. While he had a voiding dysfunction, the evidence, other than his subjective complaint, was insufficient to associate the diagnosis to any lower lumbar disc condition. The examiner stated that there is no currently established diagnosis of any bladder or urinary tract condition based upon his single examination. Review of available medical evidence remained insufficient to support any diagnosis or provide an association between his back disability to his current complaint. In sum, there is no evidence of voiding dysfunction related to the Veteran's back disability for the period prior to July 28, 2010. For the period from July 28, 2010, while the Board acknowledges the Veteran's complaints of voiding dysfunction, based on the September 2015 VA examination, the examiner determined that there was no diagnosed bladder or urinary tract condition. On this basis, the Board finds that a compensable rating for the neurological manifestations associated with the Veteran's back disability is unavailable at this time, for the period prior to and since July 28, 2010. The best evidence in this case provides evidence against this claim. With regard to an increased rating under the criteria considering incapacitating episodes prior to and since July 28, 2010, the Board notes that a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. However, there is no evidence that the Veteran was prescribed bedrest for at least two weeks prior to July 28, 2010, or at least four weeks since July 28, 2010. As such, an initial rating higher than 10 percent prior to July 28, 2010 and higher than 20 percent since July 28, 2010, is not warranted on the basis of incapacitating episodes. 38 C.F.R. § 4.71a, 5243. Based on an extensive review of the available evidence, including the STRs and post-service treatment records, and VA examinations, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 10 percent prior to July 28, 2010, and higher than 20 percent since July 28, 2010, for a back disability. With regard to his back disability, the Veteran is competent to report his complaints of pain and weakness as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously (this was the basis of the Board's remands in order to address this medical question). He is not, however, competent to identify a specific level of disability of his back disability according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran's back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Additionally, with respect to an extraschedular rating under 38 C.F.R. § 3.321 for his increased disability claim, the applicable rating criteria contemplate all impairment resulting from his back disability. The criteria reasonably describe the Veteran's disability level and symptomatology, specifically his complaints of pain, limitations on activities of daily living, and weakness due to his back disability. The assigned schedular rating is, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. TDIU The Veteran contends that since May 2014, he has been unemployable due to his service-connected back and right shoulder disabilities. See, VA Form 21-8940, Application for Increased Compensation Based on Unemployability, submitted in May 2014. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2015). A total disability rating for compensation purposes may be assigned on the basis of "individual unemployability," or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2015). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment, as in this case, is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)...[than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. The Veteran is currently service-connected for a back disability, rated 20 percent disabling, effective July 28, 2010; right leg radiculopathy, rated 20 percent disabling, effective September 28, 2015; left leg radiculopathy, rated 10 percent disabling, effective September 28, 2015; a right shoulder disability, rated 10 percent disabling, effective May 20, 2007; and tinnitus, rated 10 percent disabling, effective May 20, 2007. The combined disability rating was 60 percent, effective from September 28, 2015. At no time has the Veteran met the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. 38 C.F.R. § 4.16(b). Turning to the merits of the claim, VA treatment records include an April 2012 report which indicates that he worked as an Emergency Management Technician (EMT), especially on weekends. In August 2012, the Veteran testified that with regard to employment he did not have any formal education and other than high school and his military education. He testified that there were not too many jobs opportunities without a formal education, but he expected to get his degree in the next few years. He testified that he had difficulty with prolonged standing and sitting and contended that his back disability prevented him from being gainfully employed. On January 2013 VA shoulder and arm conditions examination, the examiner opined that the right shoulder disability did not impact his ability to work. At the time of the February 2015 VA spine examination, the Veteran was a full-time student. He stated that he quit his job as an EMT due to the heavy physical work which caused a lot of back pain due to carrying heavy boards and lifting patients. With regard to employment, the examiner indicated that the Veteran reported that he was unable to work due to his service-connected back disability. However, the examiner opined that the back disability limited, but did not preclude, his ability to perform physical work and sedentary work and physical work. The examiner concluded that his back disability less likely as not precluded his ability to secure and maintain substantially gainful employment. Notably, the Veteran reported that boxing, a non-sedentary activity, did not bother his back. On September 2015 VA spine examination, with regard to employment, the examiner opined that he was unable to repeatedly bend, lift, stoop or carry/lift loads repeated greater than 25 pounds, unable to stand or sit for periods greater than 30 minutes (to include driving); unable to perform heavy gardening or yard work involving push mowing, plowing, shoveling, raking; and was unable to participate in sports involved impact exercise, but could continue to use gentle yoga or boxing/rotational type without weights, as well as core and traction building exercises. The examiner finally opined that he was able to perform sedentary work tasks and perform activities of daily living independently. As previously stated, at no time has the Veteran met the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). In cases such as this, where these percentage requirements are not met, entitlement on an extraschedular basis may be considered. Essentially, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown 4 Vet. App. 361, 363 (1993). The Board also finds that the evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities, specifically his right shoulder and back disabilities. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. In this case, the January 2013 VA examiner opined that the right shoulder did not impact his ability to work. The September 2015 VA examiner opined that his back disability did not preclude sedentary employment. In considering whether TDIU is warranted, the Board has also considered the Veteran's statements that his service-connected disabilities render him unemployable. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify to the extent to which his service-connected disabilities render him unemployable according to the pertinent VA regulations. Moreover, not only does the September 2015 VA examiner agree that he is able to perform sedentary employment, the Veteran himself stated that he continues to box, a non-sedentary activity that did not bother his back (and evidently did not bother his right shoulder disability). In addition, at the time of the February 2015 VA examination, the Veteran was a full-time student, a sedentary activity. There is no question that the service-connected disabilities would create some employment difficulties, but based on the evidence of record they are not shown to be to an extent that would preclude employment. The Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. The Veteran has not submitted nor does the record contain sufficient evidence of unemployability due to service-connected disabilities to warrant referring the matter to the Director of the Compensation Service for consideration. Accordingly, the Board finds that the claim for entitlement to TDIU must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. §§ 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal therefore is denied. ORDER An initial rating higher than 10 percent prior to July 28, 2010, and a rating higher than 20 percent since July 28, 2010, for a service-connected back disability (degenerative disc disease of the lumbar spine), is denied. A TDIU is denied. ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs