Citation Nr: 1625615 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 13-11 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for a service-connected lumbar spine disability. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Although the RO indicated the claim stemmed only from the May 2010 rating decision, a review of the record reflects that within the one year period following the July 2008 rating decision, the Veteran indicated the back condition was adversely affecting her employment and submitted records from her employer in support of this statement. Applicable regulations provide that evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2015). In such situations, the applicable rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). As such, the July 2008 rating decision did not become final. Accordingly, the claim on appeal stems from the July 2008 and May 2010 rating decisions. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In March 2015 the Board remanded these issues for additional development. The Board notes that there is an electronic claims file associated with the Veteran's claim, which contains relevant evidence that will be considered by the Board in this appeal. FINDINGS OF FACT 1. The Veteran's lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. 2. The Veteran's service-connected lumbar spine disability is not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5237- 5243 (2015). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). The RO provided notice to the Veteran in June 2008 and July 2009 letters, prior to the date of the issuance of the appealed July 2008 and May 2010 rating decisions. These letters explained what information and evidence was needed to substantiate a claim for increased ratings and a TDIU, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Per the March 2015 Board remand instructions, the RO obtained outstanding VA treatment records and contacted the Veteran regarding outstanding private treatment records. Pertinent medical evidence associated with the claims file consists of private, service, and VA treatment records and the reports of June 2008, November 2009 and November 2011 VA examinations. Per the March 2015 Board remand instructions, the Veteran also underwent a VA examination in May 2015. The June 2008, November 2009 and November 2011 and May 2015 VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the June 2008, November 2009 and November 2011 and May 2015 VA examinations are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the above, the Board also finds that the RO substantially complied with the March 2015 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background A November 2007 VA treatment note recommended that the Veteran decrease her work week to 4 days a week and have the option of sitting or standing at her work station. A May 2008 VA treatment report noted that while the Veteran continued to have low back pain, she tolerated the day work week well. The Veteran underwent a VA examination in June 2008. The Veteran presented with complaints of pain which was rated 8 out of 10 on a daily basis in the lumbar paraspinal space. The pain was associated with decreased range of motion and paresthesias bilaterally in an L4 through S1 distribution in the lower extremities. She complained of subjective weakness in the lower extremities but denied bowel or bladder incontinence. She also complained of flare-ups several times per week which were brief in nature where the pain increased to severe (9 out of 10). This occurred with prolonged walking and prolonged driving. She indicated that she could stand for a maximum of 10 minutes before she had to stop and rest. She used topical heat and ice for treatment as well as Flexeril and Vicodin. She denied use of a back support or ambulatory aid. She currently worked as a medical transcriptionist and had to recently cut down her work per the advice of her orthopedic surgeon. She stated that her employer had complained about the change in her work schedule. She denied incapacitating episodes in the past 12 months and was independent in regards to her activities of daily living. On examination, there was tenderness to palpation over the cervical and thoracolumbar paraspinal space throughout with muscle spasms throughout. There was no unfavorable ankylosis noted in the cervical or thoracolumbar spine. Flexion was from 0 to 45 degrees active and passive with pain throughout. Extension was from 0 to 10 degrees active and passive with pain throughout. Left and right lateral flexion was from 0 to 15 degrees on active and passive with pain throughout and left and right lateral rotation were from 0 to 15 degrees on active and passive with pain throughout. Repetitive testing was unchanged from baseline at the thoracolumbar spine. The neurologic examination demonstrated normal tone and bulk throughout. Strength was normal and reflexes were normal. She had a positive Lasegue's sign bilaterally. Her gait was antalgic. The diagnosis was a lumbar strain L4-S1. The examiner noted that there was no painful motion objectively noted and on repetitive testing range motion values were unchanged from the baseline testing without pain, fatigue, weakness or incoordination. A July 2008 correspondence from a private physician noted that the Veteran needed a 4 day work week in order to avoid having back surgery. She had to have 3 consecutive days of rest due to the severity of her back disability. It was noted that concessions were made to the Veteran including adjusting her work schedule, adjusting her work to sitting or standing and providing a special chair for her back disability. A June 2009 physician's note indicated that the Veteran could return to work with no heavy lifting, no prolonged standing and desk work only. In a September 2009 correspondence, the Veteran's employer noted that she had been employed since 2004 and was still employed with reduced hours. She was working as a transcription processor since August 2009. It was noted that from July 2008 to June 2009, the Veteran had missed 479 hours of work due to her service-connected back disability. The Veteran underwent a VA examination in November 2009. The Veteran complained that her back spasms were becoming more frequent and intense due to her not being able to do pool exercises due to seasonal changes. Pain was aggravated by prolonged sitting, standing, lifting, bending or walking. She complained of stiffness but denied weight loss. She reported an unsteady gait as well as complaints of a pins and needles sensation in the right lateral thigh. She also stated that both of her legs gave out on her from time to time and that she had fallen 4 to 5 times in the past year. She also complained of constipation but denied bowel or bladder incontinence. She took methadone twice a day, lorazepam at bedtime and Percocet. Flare-ups occurred once or twice a week and were severe. The flare-ups lasted several hours a day and were alleviated with rest and medication. She used a standard cane to assist with ambulation. She worked as a medical receptionists and took breaks every 20 minutes because she had a difficult time with prolonged sitting. She indicated that her job was not secure as she was very limited when she was at work and missed greater than 6 or 7 weeks of work in the past year. She also had taken a pay cut secondary to her decreased production and missed work. She slept from 4 to 5 hours a night and did very limited house work. She did not garden or do any other outdoor activities. She reported that she was prescribed bedrest between December 2008 and January 2009. However, there were no notes to support this in the claims file. On examination, she was a well-nourished, well developed female in no acute distress. Her gait was very slow and moderately antalgic with a standard cane. There was lumbar flattening. There was tenderness to palpation of lumbar paraspinal and exquisite tenderness over the sacroiliac joints bilaterally. Manual muscle testing was pain limited with 3/5 bilateral hip flexors, knee extensors, ankle dorsiflexors, plantar flexors and great toe extension. Muscle strength testing was normal bilaterally. Sensation was intact to light touch except in the right lateral thigh where she complained of pins and needles and diminished sensation to light touch. Lasegue test was negative bilaterally. Flexion was from 0 to 35 degrees with pain throughout. Extension was from 0 to 10 degrees with pain throughout. Left and right lateral rotation and left and right lateral flexion was from 0 to 10 degrees with pain throughout. On repetitive testing, there was no additional limitation due to painful motion, fatigue, weakness or incoordination and the range of motion values were unchanged after repetitive-use testing. The examiner noted that as the Veteran was having a flare on the day of the examination, it would be speculation for him to report limitations when she was not having a flare. The diagnosis was a lumbar strain and degenerative disk disease of the lumbar spine. The examiner noted that no painful motion was objectively noted and on repetitive testing range of motion values were unchanged from baseline testing without pain, fatigue, weakness or incoordination. A November 2009 private hospital treatment record noted that the Veteran had severe back pain which resulted in an inability to perform activities of daily living. It was noted that there was decreased sensation in her left lower extremity. Reflexes were 2/2 and strength was 4/5 in the lower extremities due to the severe back pain. The diagnosis was intractable back pain. Another November 2009 private treatment report noted that the Veteran had been hospitalized for 3 days due to her back pain. She was then transferred to a rehabilitation center for continued in-patient rehabilitation and the duration of her stay would probably be 2 weeks. A November 2009 neurosurgery consultation indicated that the Veteran had an exacerbation of her chronic low back pain as a result of increased physical activity last week. Surgery was not recommended. A December 2009 private treatment note indicated that the Veteran was discharged on December 7, 2009 and it was anticipated that she would continue her totally disabled state and be home bound for an additional 4 weeks. An April 2010 VA treatment note indicated that the Veteran returned to work in January 2010. Her low back pain had improved from an 8 to a 6. Her sensory examination was normal and there was no myelopathy on the examination. A January 2011 VA treatment report noted a diagnosis of degenerative disc disease with lumbosacral spam and possible impingement syndrome with recent onset of fecal and urinary incontinence and rectal spasm. The Veteran underwent a VA examination in November 2011. The Veteran reported that she was having more frequent exacerbations of back pain. While she was hospitalized in 2009 due to her back pain, there were no hospitalizations due to her back in the past 12 months. She had not been prescribed bedrest due to her back condition although she reported that during the last visit to the emergency room she was told not to go to work until she was seen by her provider. She had not had any back surgery. She reported that prolonged sitting and lying down at night aggravated the pain. She had relief with epidural injections for only 2 months. She reported pain in her low back radiating down to the lower extremities with the left being greater than the right. The pain radiates down the buttocks to the posterior thighs to the ankles. She felt that she felt out of balance and unable to walk without the assistance of a cane. The Veteran reported that she could not move during a flare-up. The Veteran did not have any additional limitation in range of motion in the thoracolumbar spine following repetitive-use testing. She did have functional loss and/or functional impairment of the thoracolumbar spine as there was less movement than normal and pain on movement. Guarding or muscle spasm was present but it did not result in abnormal gait or spinal contour. Strength testing was normal and there was no atrophy. Reflexes and sensory examinations were normal. There was no radiculopathy and no IVDS. She regularly used a cane. The examiner noted that the examination yielded unreliable/inconsistent results. Her subjective complaints during the examination appeared to be out of proportion to objective examination findings. As the Veteran reported an inability to stand and to perform range of motion testing due to risk for falling, range of motion testing was attempted with the Veteran sitting. She reported severe pain and was unable to move more than 45 degrees of forward flexion and refused to perform extension alleging that she could not stand due to back pain. With encouragement, she was able to perform 20 degrees of right and left lateral flexion and rotation. She subjectively reported severe pain throughout all range of motion. Passive range of motion was unchanged from active range of motion and the repetitive-use testing ranges of motion values were unchanged from the baseline values. There was no pain, fatigue, weakness or incoordination noted. The examiner noted that the Veteran complained rather adamantly and demonstrated exaggerated pain response on all attempted maneuvers. This was not compatible with her motion when she was doing this when not asked. The back disability impacted her ability to work as she reported that prolonged sitting aggravated her pain. The diagnosis was degenerative disc disease with subjective chronic lumbar spine pain. There was no evidence of bilateral lower extremity radiculopathy. A February 2014 VA radiology treatment provided a diagnosis of sacroiliitis, a lumbar strain and lumbar radiculopathy. It was noted that they were awaiting the results of an MRI. Per the March 2015 remand instructions, the Veteran underwent a VA examination in May 2015. The diagnosis was mild degenerative disc disease L3-4 through L5-S1 with disc bulges (per the MRI) without radiculopathy or myelopathy. The Veteran indicated that her back had worsened and that she was no longer able to do her outside walks. She described constant symptoms of back pain which was usually a 9 out of 10. She also noted that her feet always felt like pins and needles and like she was "walking on hot coals". She also indicated that her legs gave out on me in both legs and that she "fell all of the time". However, the examiner noted that according the medical treatment records, these falls are not the result of her service-connected back disability. The Veteran described intermittent back spasms which happened 2 to 3 times a week. The longest that this had ever happened was "like a couple of hours". She said that her last resort was to go to the hospital. She reported being hospitalized in May 2014 for "a couple of weeks" for her back as she indicated that she could not walk and her legs were so weak that they were dragging. The examiner noted that there was a normal myelogram and that no spine/back abnormality was found. An etiology of the reported leg weakness/foot drop had not been found. She reported that 2 or 3 days a week she could not get out of bed as her legs were weak. The examiner noted that the Veteran worked as a medical secretary. She worked 4 days a week anywhere from 8 to 10 hours a day. She noted that her supervisor granted accommodations to include a new chair, footstool and a headset as well as flexibility in duty. She reported that in the past year, she probably missed 2 months of work. The examiner noted a past medical history which included a May 2014 CT post myelogram of the thoracolumbar spine which was unremarkable. The examiner noted that the above myelogram study which was obtained during a period of "intractable" back pain, documented the absence of a structural spine cause for the Veteran's subjective pain. There was no evidence for myelopathy or radiculopathy as a cause for symptoms of pain/weakness. The examiner noted that during the hospitalization, the Veteran was not on prescribed bedrest. The evaluation was negative for a structural spinal etiology and there was no focal disc bulging, no spinal stenosis and not foraminal narrowing of the myelogram. The examiner also noted that a May 2014 follow up neurological examination indicated that the disc bulging was so mild that it was not picked up by myelogram. There were no neurologic abnormalities identified on the follow up neurologic examination. While the Veteran presented with complaints of radiating pain down her legs, there were intact motor and sensory examinations of the lower extremities. On examination, the Veteran presented with complaints of flare-ups as she had constant pain in the back with intermittent severe pain 2 to 3 times a week. However, the examiner indicated that the Veteran's reported episodes of leg weakness, falls, inability to walk and urinary incontinence were not related to her service-connected back disability. Notably, an extensive evaluation in May 2014 found no back related etiology of these symptoms and an emergency room evaluation in May 2015 included a normal back/neurological examination. The examiner indicated that the Veteran did not have flares of symptoms related to an intervertebral disc condition. Forward flexion was from 0 to 80 degrees. Extension was from 0 to 20 degrees. Right and left lateral flexion and right and left lateral rotation were all 0 to 30 degrees. Pain was noted on the examination but it did not cause functional loss. There was no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. There was no additional loss of range of motion after repetitive use. The examiner indicated that it was impossible to state, without undue speculation, whether pain, weakness, fatigability or incoordination could significantly limit functional ability when the spine was used repeatedly over a period of time. As such, any degrees of additional range of motion loss due to pain on repetitive use over time could not be determined. The examiner also indicated that it was impossible to state, without undue speculation, whether pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or when the joint/spine was used repeatedly over a period of time. As such, any degrees of additional range of motion loss due to pain on repetitive use over time or during flare-ups could not be determined. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflexes and sensory examinations were all normal. The Veteran did not have any radicular pain or any other signs or symptoms of radiculopathy. There was no ankylosis of the spine. There were no other neurologic abnormalities and the Veteran did not have IVDS of the lumbar spine. The Veteran occasionally used a walker. The examiner noted that the Veteran's subjective complaints during the examination appeared to be out of proportion to the objective findings and the medical treatment records. She was noted to display poor effort during her formal back examination as compared with the observed usage and range of motion of the back during other portions of the evaluation. She rigidly stop flexing and extending her back at 20 degrees but was observed later leaning slightly forward with her legs fully extended without signs of discomfort which indicated a capability of a lumbar range of motion of at least 80 to 90 degrees of forward flexion. Based on these observed objective findings, the examiner listed 80 degrees for forward flexion. The examiner noted that such incongruity in the Veteran's reports and objective findings had been noted through the years by multiple clinicians. The Veteran's back disability did impact her ability to work however, the examiner noted that in the setting of the subjective-objective incongruity it was difficult to accurately determine what, if any functional impairment there was as a result of her subjective symptoms. The examiner opined that it was less likely than not that the Veteran's back disability would interfere with her employment. The diagnosis was mild degenerative disc disease with disc bulges without radiculopathy or myelopathy and symptoms of leg weakness and falls which were not related to the lumbar spine disability. The examiner concluded that it was less likely than not that the Veteran's service-connected lumbar spine disability would impact her ability to secure or follow a substantially gainful occupation. I. Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2015). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). 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). 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). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2015), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2015). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of back pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe her symptoms and their effects on employment or daily activities. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran filed an increased rating claim for her service-connected lumbar spine disability that was received by VA in May 2008. The Veteran's low back strain is currently rated as 40 percent disabling under Diagnostic Codes 5243. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The rating criteria define normal range of motion for the various spinal segments 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). Analysis Considering the pertinent evidence, the Board finds that a rating greater than 40 percent for the Veteran's low back disability is not warranted. The Board notes that in order to assign a higher rating in excess of 40 percent based on limitation of motion, the record must establish that ankylosis is present. In this regard, the evidence simply does not show any ankylosis of the lumbar spine. The May 2015 VA examiner specifically indicated that the Veteran does not have ankylosis. Moreover, the aforementioned range of motion findings do not demonstrate that the joint was immobile or fixed in place. The Board notes again that 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). As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that a rating in excess of 40 percent under the General Rating Formula is not warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 40 percent for the Veteran's service-connected low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the VA examiner found objective evidence of pain on range of motion; however, the examiner did not find additional limitation of motion after multiple repetitions of range of motion which would warrant a 40 percent evaluation. VA examination reports also noted that the Veteran's back problems affected some of her daily activities as the Veteran occasionally used a cane and her disability also impacted her work. However, the May 2015 examination also revealed normal muscle tone with no evidence of muscle atrophy. In essence, the Veteran's restricted activities appear to be mainly due to painful motion, which is contemplated in the current 40 percent rating. Indeed, the current 40 percent rating is for favorable ankylosis of the entire thoracolumbar spine or for forward flexion of less than 30 degrees. As the Veteran does not have favorable ankylosis of the entire thoracolumbar spine and has flexion of 30 degrees with no decrease of motion on repetition, the current 40 percent rating clearly contemplates and encompasses the Veteran's degree of functional loss. Additionally, the May 2015 VA examiner noted that there was an incongruity in the Veteran's reports and objective findings on examination which had also been noted through the years multiple clinicians. Notably, the Veteran has indicated that she experienced flare-ups that impacted the function of her back that have been severe. However, the May 2015 VA examiner indicated that it was impossible to state, without undue speculation, whether pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or when the joint/spine was used repeatedly over a period of time. As such, any degrees of additional range of motion loss due to pain on repetitive use over time or during flare-ups could not be determined. The examiner also noted that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Moreover, from the record, there is no evidence or allegation that the Veteran's previously reported flare-ups actually resulted in an ankylosed spine and, as addressed below, there is no indication of physician prescribed bed rest. Therefore, even if the additional limitation of motion during such flare-ups were extreme, the Board finds that the overall impairment resulting from her back disability would still more closely approximate no more than a 40 percent rating under the rating criteria. Overall, the Board finds that the medical evidence is consistent with no more than a 40 percent rating under the General Rating Formula Since the medical evidence does not support the assignment of the next higher, 50 percent, rating under the General Rating Formula, it logically follows that no higher rating under the General Rating Formula is assignable. In reaching this conclusion, the Board has considered the Veteran's complaints on examination, but does not find them more probative than the objective medical findings. Regarding an evaluation in excess of 40 percent based on incapacitating episodes, the May 2015 VA examiner specifically noted that there was no evidence of intervertebral disc syndrome and the record contains no evidence showing that the Veteran had been prescribed bedrest as required by the regulation. As noted above, for the purposes of evaluating intervertebral disc disease based on incapacitating episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc disease 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. In short, the medical evidence simply does not indicate the Veteran's spine is ankylosed (frozen) or that her low back disability causes incapacitating episodes amounting to at least six weeks per year. Indeed, while the Veteran has reported significant back pain that was constant, there is no evidence or suggestion that a physician prescribed bed rest at any time. Thus, the Veteran has not incurred incapacitating episodes of at least six weeks in the previous year sufficient to warrant a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. Notably, a November 2009 private hospital treatment record noted that there was decreased sensation in her left lower extremity and that strength was 4/5 in the lower extremities due to the severe back pain and a February 2014 VA radiology treatment provided a diagnosis of sacroiliitis, a lumbar strain and lumbar radiculopathy. However, the May 2015 VA examiner specifically addressed these results at length when determining that the Veteran did not have any radicular pain or any other signs or symptoms of radiculopathy as muscle strength, reflexes and sensory examinations were all normal. The examiner also noted a past medical history which included a May 2014 CT post myelogram of the thoracolumbar spine which was unremarkable. The examiner noted that the above myelogram study which was obtained during a period of "intractable" back pain, documented the absence of a structural spine cause for the Veteran's subjective pain. There was no evidence for myelopathy or radiculopathy as a cause for symptoms of pain/weakness. As a result, the Veteran was found to not have radiculopathy associated with her lumbar spine disorder and she had no other neurologic abnormalities or findings related to a thoracolumbar spine disability. As such, separate ratings for neurological findings are not warranted. For all the foregoing reasons, the Board finds that the claim for a rating in excess of 40 percent must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Extraschedular Evaluation The Board has also considered the potential application of other various provisions, evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected lumbar spine disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the service-connected lumbar spine disability. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. II. TDIU Laws and Regulations A TDIU may be assigned when a 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). 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. Currently, the Veteran is service connected for a lumbar spine disability at a 40 percent disability rating. Accordingly, her combined disability rating is 40 percent which does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular 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) (2015). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Factual Background and Analysis The Veteran has argued that she has been unable to work a result of her service-connected lumbar spine disability. Initially, the Board notes that the Veteran is service-connected for a lumbar spine disability at a 40 percent disability rating. As a result, the Veteran's combined disability rating of 40 percent does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. On review of the record, the Board finds the Veteran is not unemployable by reason of her service-connected lumbar spine disability and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. The Veteran has maintained that she is unemployable due to the effects of her service-connected lumbar spine disability. However, this evidence must be weighed against the fact that the Veteran is still able to maintain gainful employment despite restrictions as a result of her service-connected lumbar spine disability. As noted above, the Veteran is currently employed as a medical secretary where she worked 4 days a week anywhere from 8 to 10 hours a day. She noted that her supervisor granted accommodations to include a new chair, footstool and a headset as well as flexibility in duty. She reported that in the past year, she probably missed 2 months of work. As noted above, the evidence clearly reveals that the Veteran has a significant lumbar spine disability which has impacted her work as accommodations have been made. While the Board is sympathetic for the restrictions that encompass this disability, the evidence clearly demonstrates that the Veteran's service-connected lumbar spine disability does not preclude all forms of employment. Specifically, the May 2015 VA examiner concluded that it was less likely than not that the Veteran's service-connected lumbar spine disability would impact her ability to secure or follow a substantially gainful occupation. This is consistent with the fact that the Veteran is still employed, and the frequency and duration of her work hours. The Board understands that she has missed a significant amount of work, and has reduced her number of hours. However, given that she is still working 4 days a week from 8 to 10 hours, the Board finds that she is gainfully employed. Furthermore, while her pain has impaired her ability to function, the nature of her work and experience as a medical secretary is such that the symptoms and manifestations would not render her totally unable to obtain or retain employment. Here, the central inquiry is whether the Veteran's service-connected disability, alone, is of sufficient severity to preclude her from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected lumbar spine disability precludes her from obtaining or engaging in substantially gainful employment. In sum, the Board has found the Veteran to not be unemployable due to her service-connected lumbar spine disability. Accordingly, the criteria for referral of the claim for consideration of a TDIU on an extraschedular basis are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an increased rating in excess of 40 percent for a service-connected lumbar spine disability is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs