Citation Nr: 1614463 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 09-38 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating greater than 20 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial disability rating greater than 30 percent for asthma. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served in the U.S. Army from April 1996 to September 1996 and from U.S. Coast Guard from October 2001 to June 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2012, February 2013, and May 2013, the Board remanded the appeal for further development. After completion of this development, the case has since been returned to the Board for appellate review. The Board observes that in a recent April 2015 rating decision, the RO denied the Veteran's claims for an increased rating greater than 10 percent for right lower extremity radiculopathy and for service connection for left lower extremity radiculopathy. However, a review of the record shows that the Veteran did not submit a Notice of Disagreement (NOD) or Substantive Appeal (e.g., VA Form 9 or equivalent statement) for these particular issues. See 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302 (2015). Thus, the Veteran's lower extremity radiculopathy, which is associated with his service-connected lumbar spine disorder on appeal, is not on appeal before the Board at this time. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS). Virtual VA, in particular, includes additional VA treatment records. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's intervertebral disc syndrome and arthritis of the thoracolumbar spine is productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during any 12 month period. However, the Veteran's intervertebral disc syndrome is not productive of unfavorable ankylosis of the entire spine; unfavorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least at least 6 weeks during any 12 month period. 2. The Veteran's asthma disability is not productive of FEV-1 of 40 to 55 percent of predicted value or worse; or an FEV-1/FVC of 40 to 55 percent or worse; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; or more than one attack per week with episodes of respiratory failure; or the daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 3. Based on the Board's grant in the present decision of a higher initial rating for the lumbar spine, the Veteran now has the following service-connected disabilities: lumbar spine degenerative disc disease, rated as 40 percent disabling; asthma, rated as 30 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; and adjustment disorder, rated as 10 percent disabling. The combined service-connected disability rating is 70 percent, meeting the schedular percentage criteria for consideration of a schedular TDIU rating (under the combined rating table). 4. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria are met for an initial disability rating of 40 percent, but no greater, for intervertebral disc syndrome and arthritis of the thoracolumbar spine. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2015). 2. The criteria for an initial disability rating higher than 30 percent for an asthma disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.96, 4.97, Diagnostic Code 6602 (2015). 3. The criteria are not met for entitlement to a TDIU rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty 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, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As part of this duty, the Veteran should be advised of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this case, for the initial rating and TDIU issues on appeal, the duty to notify was satisfied by notice letters sent to the Veteran in February 2008, August 2008, June 2012, June 2013, and July 2014. Moreover, the February 2008 and June 2012 VCAA notice letters advised the Veteran of the additional notice requirements for increased rating claims. VCAA notice for an increased rating claim does not have to be individually tailored or specific to each Veteran's particular facts, but rather only a generic notice is required. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The February 2008 and June 2012 VCAA letters, in particular, were fully sufficient. In any event, the increased rating issues for lumbar spine and asthma disabilities arise from disagreement with the initial evaluations following the grant of service connection for lumbar spine and asthma disabilities in an October 2008 rating decision. Both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit Court of Appeals (Federal Circuit Court) have held that, once service connection is granted, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also VAOPGCPREC 8-2003 (December 22, 2003). With regard to the timing of VCAA notice, the initial rating and TDIU issues were last adjudicated by the RO in an October 2014 Statement of the Case (SSOC), such that any timing error was cured by a latter readjudication. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Accordingly, the Veteran has received all required notice in this case for both the initial rating and TDIU issues on appeal, such that there is no prejudicial error in the content or timing of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). There has been no allegation of any error in the VCAA notice provided to the Veteran. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, VA treatment records, VA examinations, and private medical evidence as authorized by the Veteran. For his part, the Veteran has submitted personal statements, a statement from his spouse, argument from his representative, and additional private medical evidence. Although the Veteran initially stated that he was determined to be disabled by the Social Security Administration (SSA), a March 2013 response from the SSA was negative for any available disability records. See also April 2013 Formal Finding of Unavailability. In fact, the Veteran later clarified in May 2013 and September 2013 that it was his father who received SSA disability benefits, and there were no outstanding SSA disability records or Workers Compensation disability records pertaining to him. Thus there is no reasonable basis to attempt to secure any SSA or Workers Compensation records. Furthermore, in a July 2014 statement, the Veteran noted there was no additional evidence to secure. The last VA examinations rating the severity of the Veteran's service-connected lumbar spine and asthma disabilities were in June 2014. However, the record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. Initially, the June 2014 VA examinations pertaining to the disabilities on appeal are fairly recent. In any event, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Herein, the Board is granting a higher 40 percent rating for the Veteran's lumbar spine to account for worsening of the disability. Furthermore, neither the medical evidence of record, nor the Veteran's lay statements, show additional worsening above the 40 percent rating for the lumbar spine disability and 30 percent for the asthma disability. The Board finds the VA examinations adequate as they were conducted upon a review of the claims file, included thorough examinations, and addressed the Veteran's symptoms as they relate to the relevant diagnostic codes. Therefore, a new VA examination to rate the severity of either his lumbar spine or asthma disabilities is not warranted, as there is adequate medical and lay evidence of record to make a determination for the increased rating issues in this case. With regard to the previous March 2012, February 2013, and May 2013 Board remands, the Board finds that the RO/AMC substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the remands, the RO/AMC provided additional corrective VCAA notice to the Veteran for the TDIU issue; secured additional VA and private treatment records; received a negative response for SSA records; secured August 2013 and April 2014 determinations from the Director of Compensation and Pension Service for extraschedular consideration for TDIU; and, afforded the Veteran several VA examinations to rate the current extent and severity of his service-connected lumbar spine and asthma disabilities. As such, the RO/AMC has substantially complied with the Board's instructions. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2014). Hence, there is no error or issue that precludes the Board from addressing the merits of the increased rating and TDIU issues on appeal. II. Increased Rating Laws and Regulations - Schedular Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. The Veteran has appealed the October 2008 rating decision that granted service connection for his degenerative disc disease of the lumbar spine and asthma. He has expressed disagreement with the initial, respective 20 percent and 30 percent ratings for these disabilities assigned since January 10, 2008. Thus, this case could result in "staged ratings" based upon the facts found during the period in question. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant time period for consideration in a claim for an initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). That is to say, the Board must consider whether there have been times since the effective date of his award when his lumbar spine and asthma disabilities have been more severe than at others for the time period from January 10, 2008 to the present. Id. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). For example, the Court has specifically held that the Veteran is competent to describe symptoms of asthma. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (asthma symptoms); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay person competent to testify to lack of symptoms of difficulty breathing prior to service, continuous symptoms of breathing difficulty after service, and that he was given medication). A. Lumbar Spine Disability The Veteran's lumbar spine degenerative disc disease is rated as 20 percent disabling under Diagnostic Code 5242, degenerative arthritis of the spine. 38 C.F.R. § 4.71a (2015). This rating has been in effect since January 10, 2008. However, the Veteran also has a diagnosis of intervertebral disc syndrome (IVDS). See June 2014 VA examination. In this regard, VA examiners have consistently indicated the Veteran has degenerative disc disease associated with his service-connected lumbar spine disability. See VA examinations dated in September 2008 and October 2012; VA X-ray report dated in September 2008; and June 2013 magnetic resonance imaging (MRI) report. Therefore, ultimately, Diagnostic Code 5243 for IVDS provides the most favorable potential rating for the Veteran. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In this case, the Veteran's service connection claim for the lumbar spine was received by the RO in January 2008, which was subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The September 2003 amendments indicate that IVDS, (preoperatively or postoperatively) can be evaluated under 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 method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. 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): (See also Plate V) 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 is zero to 30 degrees, and left and right lateral rotation is 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 cervical spine is 340 degrees and 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 (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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: 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. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2: If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). The evidence of record is supportive of a higher 40 percent rating for the Veteran's lumbar spine IVDS. 38 C.F.R. § 4.7. This 40 percent rating is effective under Diagnostic Code 5243 for IVDS under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Specifically, the June 2014 VA examiner diagnosed IVDS and degenerative disc disease of the lumbar spine. There is also competent and credible medical and lay evidence of record strongly suggesting incapacitating episodes for the lumbar spine having a total duration of at least 4 weeks but less than 6 weeks during any 12 month period. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. That is, the Veteran has consistently reported being unable to get out of bed because of lumbar spine exacerbations approximately 2-3 days a month (so approximately 24-36 days a year or 3-5 weeks a year). See July 2014 TDIU application; September 2008 VA examination (Veteran reports being bedridden 2-3 days per month due to low back pain); October 2012 VA examination (the Veteran had close to 4 weeks of sick leave due to lumbar spine pain). See also December 2008 and December 2009 Veteran's statements; September 2009 VA Form 9; February 2010 Veteran's statement (severe pain for 3-4 days straight leaving the Veteran bedridden); 2010 private treatment records from Barnes Family Chiropractic Clinic (noting the Veteran has to lay on his bed or sofa during flare-ups). So resolving all reasonable doubt in his favor, incapacitating episodes of his service-connected degenerative disc disease of the lumbar spine warrant a higher 40 percent rating under Diagnostic Codes 5243. 38 C.F.R. § 4.3 However, the Board concludes that the Veteran is not entitled to an initial rating in excess of 40 percent for his service-connected degenerative disc disease of the lumbar spine. 38 C.F.R. § 4.7. With regard to orthopedic manifestations of the lumbar spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire thoracolumbar spine warranting a higher 50 percent evaluation, or even favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. There is no diagnosis of ankylosis in the evidence of record, and range of motion findings, although limited at times, do not reveal unfavorable ankylosis or even favorable ankylosis. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the range of motion findings of the lumbar spine at VA examinations dated in September 2008, January 2010, October 2012, and June 2014, even when considering additional functional loss, the medical evidence shows that the Veteran's lumbar spine is not fixated or immobile with fibrous or bony union. In this regard, a July 2010 VA progress note documented low back pain radiating to the right leg, but with flexion and extension and rotation within normal limits (WNL). The September 2008 VA examination found the Veteran to have 60 degrees of lumbar flexion, 30 degrees of extension, 30 degrees of right and left lateral flexion, and 30 degrees of right and left rotation, all with consideration of functional loss factors such as pain, weakness, and muscle spasm. However, the VA examiner noted there was no additional range of motion loss due to fatigue, lack of endurance, or lack of incoordination. The VA examiner also specifically noted no thoracolumbar spine ankylosis. The January 2010 VA examination found the Veteran to have 80 degrees of lumbar flexion, 20 degrees of extension, 20 degrees of right and left lateral flexion, and 25 degrees of right and left rotation, all with consideration of pain on active range of motion. There were no additional limitations after three repetitions of range of motion. The VA examiner also specifically noted no thoracolumbar spine ankylosis. A July 2011 VA history and physical outpatient record documented that range of motion for the Veteran's musculo-skeletal system was normal. The October 2012 VA examination found the Veteran to have 80 degrees of lumbar flexion, 15 degrees of extension, 20 degrees of right and left lateral flexion, and 25 degrees of right and left rotation, all with consideration of pain on active range of motion. The Veteran was noted to have stopped his range of motion due to pain at the above measurements. There were no additional limitations after three repetitions of range of motion. There was no additional range of motion loss due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use. The VA examiner also specifically noted no thoracolumbar spine ankylosis. The June 2014 VA examination found the Veteran to have 80 degrees of lumbar flexion, 30 degrees of extension, 25 degrees of right and left lateral flexion, and 30 degrees of right and left rotation, all with consideration of pain on active range of motion. The above readings considered the impact of additional limitation in range of motion of the thoracolumbar spine upon repetition. In particular Veteran has functional loss, functional impairment and additional limitation of range of motion of the thoracolumbar spine after repetitive use, due to the following factors of disability: less movement than normal, pain on movement; and interference with sitting, standing and/or weight-bearing. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above, repetitive motion and pain were considered, but the lumbar spine was not additionally limited to the point of demonstrating ankylosis. VA and private treatment document low back pain, but fail to reveal any evidence of thoracolumbar spine ankylosis. Furthermore, the Veteran's lay statements do not indicate that there has been ankylosis or lack of range of motion that more nearly approximates ankylosis. The Veteran does use any assistive devices to walk. Thus, it is apparent from the evidence of record that the Veteran's lumbar spine is not fixated or immobile with fibrous or bony union. An increased evaluation for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness or weakened movement or excess fatigability or incoordination in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. VA examinations dated in September 2008, January 2010, October 2012, and June 2014, discuss the Veteran's complaints of "constant" low back pain upon activities of daily living; weakness; muscle spasms; stiffness; and difficulty bending, sitting, or stretching. The Board notes it has also considered the competent and credible lay evidence from the Veteran when considering functional loss. Nevertheless, the effect of the pain and other factors listed in the Veteran's lumbar spine is contemplated in the 40 percent rating assigned. Indeed, as previously discussed, the evidence does not show that pain or other factors cause functional loss more closely approximating favorable or unfavorable ankylosis. Pain in itself does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With regard to incapacitating episodes, the evidence of record does not show the Veteran to have had incapacitating episodes having a total duration of at least 6 weeks during any 12 month period, which is required for a higher 60 percent rating. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. At the very most, the Veteran has reported 5 weeks of incapacitating episodes per year. See again July 2014 TDIU application; September 2008 VA examination (Veteran reports being bedridden 2-3 days per month due to low back pain). There are no VA or private treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least 6 weeks. Thus, a rating above 40 percent is not warranted for the Veteran's lumbar spine under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. With regard to any associated neurological abnormalities, as alluded to in the introduction of this decision, in a recent April 2015 rating decision, the RO denied the Veteran's claims for an increased rating greater than 10 percent for right lower extremity radiculopathy and for service connection for left lower extremity radiculopathy. Thus, the neurological issues are not before the Board at this time. With regard to arthritis, the Veteran is indeed service-connected for lumbar spine arthritis. The Board must consider all other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). However, since 20 percent is the maximum rating available under an alternative Diagnostic Code 5003 for arthritis, further consideration of this particular diagnostic code is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In other words, this diagnostic code does not have the potential to offer the Veteran a rating greater than the 40 percent he already has been granted here for the lumbar spine degenerative disc disease. Accordingly, an increased initial 40 percent rating, but no greater, for IVDS and arthritis of the thoracolumbar spine is granted. 38 C.F.R. § 4.3. There is no basis to "stage" the Veteran's 40 percent rating for his lumbar spine disability, as his symptoms have remained consistent throughout the entire appeal period from January 10, 2008 to the present. Fenderson, 12 Vet. App. at 126. B. Asthma The Veteran's asthma is rated as 30 percent disabling under Diagnostic Code 6602, bronchial asthma. 38 C.F.R. § 4.97 (2015). This 30 percent rating has been in effective since January 10, 2008. Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847. Ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2015). Effective October 6, 2006, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions. See 71 Fed. Reg. 52459 (Sept. 6, 2006) (codified at 38 C.F.R. § 4.96(d)). That is, 38 C.F.R. § 4.96(d) was added to the Rating Schedule, applicable to all applications for benefits received by VA on or after October 6, 2006. In the present case, the Veteran filed his initial rating claim in January 2008, subsequent to the effective date of the change. Therefore, the amendments are applicable to his asthma claim. This amended regulation 38 C.F.R. § 4.96(d), entitled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845," has seven subsections. 38 C.F.R. § 4.96(d)(1)-(7) (2015). But the Board observes that Diagnostic Code 6602 for bronchial asthma, which is the most appropriate diagnostic code for the Veteran's service-connected disability, was not included in these special provisions. Thus, the provisions of 38 C.F.R. § 4.96(d)(1)-(7) do not specifically apply here. As such, there are no regulations identifying whether pre- or post-bronchodilator results should be used when determining disability ratings under Diagnostic Code 6602. In any event, both prior to and after the above amendments, post-bronchodilator findings for PFTs are the standard in pulmonary assessment. See 61 Fed. Reg. 46,720, 46,723-29 (Sept. 5, 1996) (the results of testing following optimum therapy reflect the best possible functioning of an individual and are the figures used as the standard basis of comparison of pulmonary function.). This fact notwithstanding, in offering the Veteran every benefit of the doubt, the Board will consider both pre-bronchodilator and post-bronchodilator PFT results in evaluating whether he is entitled to a higher rating for his service-connected asthma disability. In other words, the Board will use the PFT results that allow the most favorable disability rating to the Veteran. This way the Veteran receives every benefit of the doubt in the instant case. Under Diagnostic Code 6602 for bronchial asthma, a 10 percent evaluation is warranted for an FEV-1 of 71 to 80 percent of predicted value, or, an FEV-1/FVC of 71 to 80 percent, or, intermittent inhalation or oral bronchodilator therapy. A 30 percent evaluation is warranted for an FEV-1 of 56 to 70 percent of predicted value, or, an FEV-1/FVC of 56 to 70 percent, or, daily inhalational or oral bronchodilator therapy, or, inhalational anti-inflammatory medication. A 60 percent evaluation is warranted for an FEV-1 of 40 to 55 percent of predicted value, or, an FEV-1/FVC of 40 to 55 percent, or, at least monthly visits to a physician for required care of exacerbations, or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A maximum 100 percent disability rating is assigned for an FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, demonstrates more than one attack per week with episodes of respiratory failure, or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 38 C.F.R. § 4.97 (2015). Moreover, a Note to Diagnostic Code 6602 indicates that in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. A review of the evidence of record does not support an initial disability rating greater than 30 percent for the Veteran's asthma disability. 38 C.F.R. § 4.7. The evidence of record does not show that the Veteran met the criteria necessary for a higher rating. In particular, he did not have FEV-1 of 40 to 55 percent of predicted value or worse; or an FEV-1/FVC of 40 to 55 percent or worse; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; or more than one attack per week with episodes of respiratory failure; or the daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602. In making this determination, the Board has considered VA and private treatment records with PFT studies dated from 2008 to 2014, VA respiratory examinations dated in September 2008, January 2010, October 2012, and June 2014, and the Veteran's lay discussion of his symptoms. In a December 2008 statement, the Veteran reported he cannot breathe easily, making it is difficult to lift up his son. A February 2008 private treatment record indicated the Veteran was on albuterol and Advair Diskus to treat his asthma. A September 2008 VA respiratory examiner reported the Veteran's history that his asthma has interfered with his life in that he has to slow down his physical activity when the wheezing starts, and he develops shortness of breath. The veteran stated he has not had to use an antibiotic in the past 12 months due to asthma. The Veteran added that he sometimes awakens in the middle of the night with shortness of breath. The Veteran has daily treatment with an inhaled bronchodilator and an inhaled anti-inflammatory. He does no use an oral steroid, a parenteral steroid, an antibiotic, or other immunosuppressive drugs. There are no side effects from his current treatment. There is no history of hospitalization or surgery. He has two asthma attacks per week, with no history of respiratory failure. He had one clinical visit for an exacerbation in December 2007. Chest X-rays dated in September 2008 were normal with no acute cardiopulmonary disease appreciated. His PFTs only demonstrated a FEV-1 of 81.6 percent predicted (pre-bronchodilator); a FEV-1 of 79.6 percent predicted (post-bronchodilator); a FEV-1/FVC ratio of 75 percent actual (pre-bronchodilator); and a FEV-1/FVC ratio of 74 percent actual (post-bronchodilator). Spirometry lung values and diffusing capacity were deemed within normal limits. There was no change in spirometry after use of the inhaled bronchodilator. A November 2009 VA progress note indicated the Veteran's asthma was completely better. He was treated with a steroid taper and a nebulizer. He was on albuterol, formoterol fumarate, ipratropium bromide, and mometasone furoate inhaler. A January 2010 VA respiratory examiner noted the Veteran was on specific medical treatment of albuterol inhaler with two puffs three times a day as needed. He does not use an oral steroid, a parenteral steroid, an antibiotic, or other immunosuppressive drugs. Treatment helped relieve his symptoms. There was no history of hospitalization or surgery. The pulmonary examination revealed no evidence of abnormal breath sounds. His condition between asthma attacks was deemed normal. The impression of a chest X-ray dated in October 2009 was no new active pulmonary consolidation or pleural effusion appreciated. The diagnosis was chronic bronchial asthma with no acute exacerbation. No PFTs were performed at this VA examination. VA PFTs performed in March 2010 only demonstrated a FEV-1 of 73.7 percent predicted (pre-bronchodilator); a FEV-1 of 79.7 percent predicted (post-bronchodilator); a FEV-1/FVC ratio of 72 percent actual (pre-bronchodilator); and a FEV-1/FVC ratio of 73 percent actual (post-bronchodilator). His spirometry reveals moderate obstructive lung disease with no significant response to bronchodilators. Lung volumes were normal. Diffusion capacity was normal. The spirometry data was deemed acceptable and reproducible albuterol puffs x 4 were given as a bronchodilator. The Veteran had good effort and cooperation. An April 2012 VA progress note renewed the Veteran's medications, a plan was discussed, and it was suggested Veteran restart a steroid spray as a daily medication and a reserve B agonist for rescue use. An October 2012 VA respiratory examiner stated the Veteran was on albuterol inhaler with two puffs six to eight times per day. He does not use an oral steroid, a parenteral steroid, an antibiotic, or other immunosuppressive drugs. There was no history of hospitalization or surgery. The Veteran exhibited a wheezing frequency 3 to 4 times a week during acute exacerbation. He was without dyspnea onset on moderate exertion. He was noted to be usually symptom free between asthma attacks. Upon objective examination, there was no pain or acute respiratory distress. His lungs were clear to auscultation with no abnormal breathing sounds, no rales, no rhonchi, and no wheezing at that time. The diagnosis was chronic bronchial asthma. No PFTs were performed at this VA examination. An October 2012 VA progress note reflected that for at least several weeks the Veteran has been having increased tightness in chest with activity. He has occasional wheezing, but he gets relief with an inhaler. His symptoms reoccur and he been using all his inhalers regularly and overusing the rescue inhaler. There was no other medication aside from inhalers such as albuterol, budesonide, and ipratropium bromide. VA PFTs performed in October 2012 only demonstrated a FEV-1 of 60.8 percent predicted (pre-bronchodilator); a FEV-1 of 67.9 percent predicted (post-bronchodilator); a FEV-1/FVC ratio of 69 percent actual (pre-bronchodilator); and a FEV-1/FVC ratio of 73 percent actual (post-bronchodilator). A May 2013 VA primary care note listed a history of asthma for about 6-7 years. The Veteran uses a Symbicort inhaler. He was also taking montelukast or Singulair (tablets), but not at present. He uses a nebulizer three times a day with albuterol and ipratropium. The Veteran is symptomatic most days. He has some good days, but more bad days. A June 2014 VA respiratory examiner said the Veteran's May 2013 chest X-ray was normal. The Veteran uses Symbicort inhalers for his asthma, as well as uses a nebulizer three times a day with albuterol and ipratropium. The Veteran has daily treatment with inhaled bronchodilator and an inhaled anti-inflammatory. He does not use an oral steroid, a parenteral steroid, an antibiotic, or outpatient oxygen therapy. In the past 12 months, he has not had any physician visits for required care of exacerbations. VA PFTs performed in June 2014 only demonstrated a FEV-1 of 70 percent predicted (pre-bronchodilator); a FEV-1 of 74 percent predicted (post-bronchodilator); a FEV-1/FVC ratio of 76 percent actual (pre-bronchodilator); and a FEV-1/FVC ratio of 76 percent actual (post-bronchodilator). With regard to potentially favorable evidence of record, the Board acknowledges there were several instances of visits to physicians for required care of exacerbations and several documented instances of treatment for systematic oral corticosteroids. For example, for the physician visits, the Veteran has stated he went to the ER on several occasions due to severe asthma attacks over the years. See February 2009, November 2012, and January 2014 Veteran's statements; January 2013 statement from spouse; September 2009 VA Form 9. In addition, VA examinations and VA treatment records have noted that the Veteran went to the ER for exacerbations of his asthma in December 2007, November 2008, December 2008, February 2009, and October 2011. However, there is no evidence he had any more than two visits to the ER in any given year. See January 2010 VA respiratory examination. And for example, for treatment with systematic oral corticosteroids, on several occasions the Veteran was placed on prednisone, Medrol dose pack, steroid taper, and antibiotics. Some of these medications were listed for the Veteran to take as needed. See November 2008 VA patient education note; December 2008 VA nursing note; December 2008 VA history and physical outpatient record; October 2009 and November 2009 VA progress notes; and January 2010 VA respiratory examination. However, the evidence does not show that during any given year (2007, 2008, 2009, 2010, 2011, 2012, etc.), the Veteran required at least three courses per year of systemic (oral or parenteral) corticosteroids. In short, none of the above potentially favorable evidence of record demonstrates the criteria required for a higher 60 percent or 100 percent rating for asthma under Diagnostic Code 6602 - that is, none of the above evidence of record demonstrates at least monthly visits to a physician for required care of exacerbations; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; episodes of respiratory failure; or daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. See 38 C.F.R. § 4.97. Instead, the evidence of record more closely approximates the criteria for his current 30 percent rating. With regard to lay evidence, the Veteran, as a lay person, has competently and credibly reported respiratory symptomatology, to include asthmatic attacks due to shortness of breath, wheezing, and chest tightening, with the need for daily inhalational or oral bronchodilator therapy. See 38 C.F.R. §§ 4.96, 4.97. In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). However, none of this confirmed symptomatology establishes a higher rating above 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 6602, for the Veteran's asthma disability. The Board has also considered application of Diseases of the Nose and Throat (Diagnostic Codes 6502 to 6524); other Diseases of the Trachea and Bronchi (Diagnostic Codes 6600 to 6604); Diseases of the Lungs and Pleura such as Tuberculosis (Diagnostic Codes 6701 to 6732); Nontuberculous Diseases (Diagnostic Codes 6817 to 6820); Bacterial Infections of the Lung (Diagnostic Codes 6822-6824); Interstitial Lung Disease (Diagnostic Codes 6825-6833); Mycotic Lung Disease (Diagnostic Codes 6834-6839); and Restrictive Lung Disease (Diagnostic Codes 6840-6847). See 38 C.F.R. § 4.97. However, the Veteran is not service-connected for any of these respiratory disorders, and the evidence of record does not reveal any diagnoses for these disorders. Therefore, these alternative diagnostic codes will not be applied for the service-connected asthma disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Diagnostic Code 6602 for bronchial asthma is clearly the most appropriate diagnostic code for rating the Veteran's asthma disability on appeal. Accordingly, the Board concludes that the evidence does not support an initial disability rating above 30 percent for the Veteran's asthma disability during the course of the present appeal. 38 C.F.R. § 4.3. It is not necessary to "stage" the Veteran's 30 percent rating, as his respiratory symptoms attributable to his service-connected asthma have been consistent at the 30 percent level for the course of the appeal. Fenderson, 12 Vet. App. at 126. III. Increased Rating - Extraschedular Basis As the Court has explained in Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry." If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. See also 38 C.F.R. § 3.321(b)(1). Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). However, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration for the increased rating claims for the service-connected lumbar spine and asthma disabilities. 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran's symptomatology for his lumbar spine and asthma is fully addressed by the rating criteria under which the disability is rated. Because the rating criteria reasonably describe the claimant's disability level and symptomatology for his lumbar spine and asthma disabilities, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned 40 and 30 percent schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. That is, the evidence fails to show anything unique or unusual about the Veteran's lumbar spine and asthma disabilities on appeal that would render the schedular criteria inadequate. There are no additional symptoms of his lumbar spine and asthma disabilities on appeal that are not addressed by the Rating Schedule. For instance, for the lumbar spine, the Board has considered the Veteran's limitation of motion, pain, stiffness, difficulty standing, bending, and lifting and other factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), in granting the 40 percent rating. The Board has also considered the Veteran's documented need for bed rest and treatment by a physician under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, when assigning the higher 40 percent rating here. Regarding his asthma, the Rating Schedule has considered the Veteran's reported asthmatic attacks due to shortness of breath, wheezing, and chest tightening, with the need for daily inhalational or oral bronchodilator therapy. See 38 C.F.R. §§ 4.96, 4.97. Thus, a comparison between the level of severity and symptomatology of the Veteran's assigned evaluations with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptoms. Moreover, there are higher ratings available under other lumbar spine and respiratory diagnostic codes, but he has not been shown to have such symptomatology. Additionally, although the Veteran's lumbar spine and asthma disabilities interfere with his employment, as shown by the Veteran's documented missed days from his work as police officer, but such interference is contemplated by the schedular rating criteria for which he has been granted a 40 rating for his lumbar spine and a 30 percent rating for his asthma. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Finally, the Board notes that under the Federal Circuit Court's recent holding in the case of Johnson v. McDonald, 762 F.3d 1362, 1365-66 (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. In the present case, in addition to the service-connected disabilities adjudicated above, the Veteran is service-connected for radiculopathy of the right lower extremity and an adjustment disorder. These issues are presently not on appeal. Regardless, the Veteran has not alleged and the evidence does not establish how the combined effects of all of the Veteran's service-connected disabilities "collectively impact" his disability picture in a way not contemplated by the Schedule for Rating Disabilities. Yancy v. McDonald, No. 14-3390 (U.S. Vet. App. February 26, 2016). Accordingly, an extraschedular referral is not warranted on a collective basis as well. Because the threshold step of Thun is not met here, and the Veteran's disability picture is contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms," such as marked interference with employment or frequent periods of hospitalization. 22 Vet. App. at 116. See also 38 C.F.R. § 3.321(b)(1). Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disabilities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). IV. TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 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). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned 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). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340 , 3.341, 4.16. In reaching such a determination, 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). 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high 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. Van Hoose, 4 Vet. App. at 363. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In this case, the Veteran contends that he is prevented from performing substantially gainful employment due to the combination of his service-connected lumbar spine degenerative disc disease, asthma, right lower extremity radiculopathy, and adjustment disorder. The Veteran is currently 40 years of age. He has a college level education. He has worked as a police officer for the Cape Coral Police Department for the past 10 years. He asserts his service-connected disabilities, in particular his lumbar spine and asthma, caused four to six weeks missed time from work per year due to low back pain and shortness of breath. He maintains that it is becoming more and more difficult to continue with the physical job requirements of being a police officer. Notably, he has not alleged during the course of the appeal that he has permanently stopped working or that he makes below the poverty threshold. See July 2014 and August 2014 VA Forms 21-8940 (Applications for Increased Compensation Based on Unemployability); January 2013 spouse statement; November 2012 Veteran's statement; October 2008 NOD; September 2009 VA Form 9. Previously, the Board remanded the TDIU issue under 38 C.F.R. § 4.16(b) on an extraschedular basis because the Veteran did not meet the schedular percentage requirements for a TDIU. See 38 C.F.R. § 4.16(a). To this end, the Board previously secured August 2013 and April 2014 evaluations from the Director of Compensation and Pension Service for extraschedular consideration for TDIU. In this regard, the Court recently held that the decision of the Director of Compensation and Pension Service is not evidence, but, rather, a de facto AOJ decision, for which the Board must conduct de novo review. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). In any event, based on the Board's grant in the present decision of a higher initial rating for the lumbar spine, the Veteran now has the following service-connected disabilities: lumbar spine degenerative disc disease, rated as 40 percent disabling; asthma, rated as 30 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; and adjustment disorder, rated as 10 percent disabling. Thus, the combined service-connected disability rating is now 70 percent, meeting the schedular percentage criteria for a TDIU rating (under the combined rating table). 38 C.F.R. §§ 4.16(a), 4.25. Therefore, the schedular percentage criteria for a TDIU rating are now met. 38 C.F.R. § 4.16(a). There is no longer any need to consider whether a TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). After weighing the medical and lay evidence of record, the Board finds that the criteria for awarding a TDIU are not met. 38 C.F.R. § 4.16(a). The evidence of record establishes that from 2006 to the present, the Veteran has been gainfully employed at the Cape Coral Police Department for the past 10 years. Despite missing on average 4-5 weeks of work per year due to his service-connected lumbar spine and asthma disabilities, he himself has stated that he works a 40 hour work week. See July 2014 and August 2014 TDIU applications. In addition, the Board has considered the following evidence of record that is against the award of a TDIU rating: At a September 2008 VA spine examination, the Veteran stated he is able to meet all physical job requirements with the Cape Coral Police Department, who is his employer. He has lost two weeks of work in the past 12 months due to low back pain and asthma. There were no significant effects on his usual occupation from his low back. At a September 2008 VA respiratory examination, it was noted the Veteran's asthma has no significant effects on his occupation. At a January 2010 VA respiratory examination, there were no effects associated with the diagnosis of asthma on the Veteran's usual occupation as a police officer. There was also no impact on the Veteran's activities of daily living. At a January 2010 VA spine examination, the Veteran stated he is able to meet all physical job requirements. He has lost approximately 24 days from work in the last 12 month period from low back pain - being unable to walk or bend. Thus, on this occasion significant effects on occupation was assessed. A July 2010 VA psychological examination opined that the Veteran's service-connected adjustment disorder with depressed mood due to chronic pain was not severe enough to interfere with occupational and social functioning. An October 2012 VA spine examiner remarked the Veteran lost approximately 24 days from work in the last 12 month period from low back pain. Nonetheless, the Veteran stated he is able to meet all physical job requirements except it can be difficult for him to engage in bending, getting out of the police car, or putting on the heavy police belt during times of low back pain. These effects on his occupation were noted to be significant. The VA examiner opined however that as far as employability in regard to his service-connected conditions (alone or in combination and including treatment), the veteran is currently working full time in his job as a police officer, and is able to maintain employment. The examiner noted that if the low back pain becomes more difficult in the future the Veteran is likely to be able to do sedentary employments or non-physically demanding work, based on the currently available information. An October 2012 VA respiratory examiner opined there were no effects due to service-connected asthma on the Veteran's occupation. The Veteran is still able to go to the gym three times per week as well. An October 2012 VA psychological examiner opined the Veteran's mood symptoms from his service-connected adjustment disorder with depressed mood are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported that he enjoys bike riding, working out, and barbequing. An April 2014 VA neurological examiner opined the Veteran's service-connected right lower extremity neuropathy does not impact his ability to work as a police officer with the city of Cape Coral for the past eight years. An April 2014 VA psychological examiner assessed the Veteran's psychiatric symptoms from his service-connected adjustment disorder with depressed mood are not severe enough to interfere with occupational or social functioning or to require continuous medication. The Veteran works out in his garage and barbeques if he has time. He is a patrol police officer. The Veteran reports that he enjoys his work and gets along with his co-workers. A June 2014 VA respiratory examiner indicated the Veteran's service-connected asthma condition impacted his ability to work because the Veteran was unable to perform heavy exertion. However, the VA examiner did not state the Veteran was no longer able to work. A June 2014 VA spine examiner commented the Veteran was unable to perform the duties of a police officer 6 times a year for 1-2 days due to flare-ups from his service-connected lumbar spine. The Veteran exhibits limited lifting, bending, and standing, which impacts his ability to work. However, the VA examiner did not state the Veteran was no longer able to work. In denying the Veteran's TDIU claim, the Board acknowledges its duty to consider the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue under 38 C.F.R. § 4.16. That notwithstanding, the Veteran has a college education, and has worked full-time as a police officer for the past ten years. The evidence does not demonstrate an inability to secure or follow a substantially gainful occupation due to the combination of the Veteran's service-connected disabilities. 38 C.F.R. § 4.16(a). As the preponderance of the evidence is against the TDIU claim, the benefit of the doubt doctrine is not applicable, and the TDIU claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Subject to the provisions governing the award of monetary benefits, an initial 40 percent rating for degenerative disc disease of the lumbar spine is granted. An initial disability rating greater than 30 percent for asthma is denied. Entitlement to a TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs