Citation Nr: 1640468 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 10-18 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an extension of a temporary total rating due to treatment requiring convalescence, in effect from September 9, 2010, to December 31, 2010. 2. Entitlement to a rating in excess of 20 percent outside periods of convalescence for a lumbar spine disability. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from November 1972 to March 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In connection with this appeal, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in April 2011. A transcript of that hearing is of record. In March 2014 and January 2016, the Board remanded the Veteran's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). The issues of entitlement to an increased initial evaluation for service- connected radiculopathy of the lower extremities, and entitlement to an effective date prior to April 22, 2009 for service connection for radiculopathy of the lower extremities, have been raised. See Veteran's representative's statement, dated in December 2015. These issues were previously referred to the Agency of Original Jurisdiction (AOJ) in January 2016, however, the RO has not yet adjudicated these issues. As such, these issues are once again referred to the AOJ for adjudication. In addition, the issues of entitlement to service connection for gastroesophageal reflux disease (GERD), a sleep disorder, an acquired psychiatric disorder, and hypertension, all to include as secondary to a service connected disability or secondary to medications for a service connected disability, have been raised by the record in a January 2016 supplemental claim, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 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). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's September 9, 2010, lumbar spine surgery required convalescence through December 31, 2010, and no longer. 2. Prior to January 23, 2015, range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., did not shown forward flexion of the Veteran's thoracolumbar spine was functionally limited to less than 30 degrees, or favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. 3. As of January 23, 2015, is shown to have been productive of subjective complaints of pain, and some limitation of motion, but not unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during a 12 month period. CONCLUSIONS OF LAW 1. The criteria for extension of a temporary total rating for convalescence following surgery for a service-connected lumbar spine disability, beyond December 31, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 4.3, 4.30 (2015). 2. Prior to January 23, 2015, the criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2015). 3. As of January 23, 2015, the criteria for a disability rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Extension of a Temporary Total Rating The Veteran asserts that he is entitlement to an extension of his temporary total rating for convalescence beyond December 31, 2010, for lumbar spine surgery performed on September 9, 2010. This claim was denied by the RO in February 2015. For both claims being adjudicated, the Board notes that in June 2016, the claims were readjudicated. Although additional evidence has been received since that time, a prospective waiver of RO review is of record. See 38 C.F.R. § 20.1304 (c) (2016). A temporary total rating for convalescence is assigned from the date of hospital admission and continues for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. Temporary total ratings may be terminated without complying with the notice and other procedural actions required by 38 C.F.R. § 3.105 (e). An extension of 1, 2, or 3 months beyond the initial 3 months may be granted based on the factors enumerated above, and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager. Id. The Veteran underwent lumbar spine surgery on September 9, 2010. A temporary total convalescent rating was assigned from September 9, 2010, to December 31, 2010. The issue is whether the total convalescent rating may be extended beyond December 31, 2010. The Veteran underwent lumbar spine surgery on September 9, 2010. He was discharged from the hospital on September 17, 2010. He received home health services during his recovery time. A report from Dr. B, dated December 28, 2010, shows that the Veteran reported having some right-sided low back pain, but he was walking, although with a stooped posture, and driving a car. Dr. B stated that he had spent a lot of time talking to the Veteran "about the fact that with his leg symptoms fully resolved, he just needs to work on his overall posture and strength." He was instructed about how to work on his overall posture and strength, and instructed on exercises that he can do on his own. The Veteran reported that he did not have any radiating pain in to his legs, as he did preoperatively. He was encouraged to work very diligently at strengthening and changing his posture. He was noted to weigh 313 pounds and instructed that he needed to lose weight. In March 2011, the Veteran saw a new physician (Dr. W). It was noted that the Veteran had undergone two spinal surgeries and that he was limited to lifting no more than 20 pounds occasionally, standing for no more than 20 minutes, and sitting for no more than 30 minutes. Give the foregoing, an extension of the Veteran's temporary total rating beyond December 31, 2010, is not warranted. While the Veteran may have continued to have complaints of back pain well after his surgery, the criteria for a temporary total rating based on convalescence rating are based on more than pain. The Veteran must demonstrate "severe post-operative residuals and a period of time needed for convalescence." 38 C.F.R. § 4.30 (a). In this case, the evidence shows that while the Veteran took medications for his continued back pain, by January 1, 2011, he had recovered from his back surgery to the extent that he was able to walk, and drive a car. He was also able to work. In reaching this decision, the Board has considered the Veteran's representative's argument, presented at his hearing, that the findings of Dr. B warrant reduced probative value because was "relieved from his duties" at the Kansas City VAMC and that the findings of Dr. W warrant more probative weight. The Veteran testified that he only spoke with Dr. B for about 10 to 15 minutes, and that Dr. B did not review the Veteran's file with him. However, the Board notes that Dr. W only restricted him to a limited range of light work in March 2011. In summary, the period after December 31, 2010 is not shown to have been manifested by severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair. Absent such findings, the criteria for extending the temporary total rating beyond December 31, 2010, have not been met. Accordingly, the Veteran's claim for an extension of the temporary total rating for lumbar spine surgery is denied. II. Increased Rating The Veteran asserts that he is entitled to an increased rating. During his hearing, held in April 2011, he testified that he has not worked full-time since 1996, and that he was fired from his last job, in part, due to his back disability. He stated that he subsequently had worked no more than part time, out of his house. He reported having severe pack pain, for which he took hydrocodone, and which at times required him to rest in bed, to include taking naps. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). On July 30, 2008, the Veteran filed a claim for a rating in excess of 20 percent for his lumbar spine disability, which was denied by a January 2009 rating decision. An April 2009 rating decision granted a temporary total rating from April 21, 2009, to May 31, 2009. A February 2011 rating decision granted a temporary total rating from September 9, 2010, to December 31, 2010. The Veteran asserts that he is entitled to a rating in excess of 20 percent, apart from the periods for which temporary total ratings have been assigned. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12 month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period on appeal. Id. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. Id. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board has considered the Veteran's report, at his September 2008 VA examination, that he estimated the he was confined to a bed six to eight times per year for 24 hours with the exception of betting up to go to the bathroom, as well as his testimony that he must rest in bed, or take naps, during flare-ups. However, the September 2008 VA examination report noted that he was not being treated by a doctor at that time, and the evidence does not show that the Veteran has experienced any incapacitating episodes of IVDS during the course of his appeal that have required prescribed bed rest. The June 2014 VA examiner acknowledged that the Veteran had IVDS, but stated that the Veteran had not had any incapacitating episodes over the past 12 months. The Veteran's extensive medical records were exhaustively reviewed. They do not show that he was prescribed bed rest to treat his lumbar spine disability. Because the prescription of bed rest is a fundamental requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's back disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. 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 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 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 (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. A. Prior to January 23, 2015 On July 29, 2008, the day before the Veteran filed his increased rating claim, medical records show that he while he reported pain of 7-9/10, he retained good lumbar spine range of motion. In January 2009, he was restricted to lifting 20 pounds, could not bend, stoop, climb, or stand, and required a break every 30 minutes to stand as needed. At a September 2008 VA examination, the Veteran reported that his lumbar spine had progressively worsened. On examination, he had no lumbar spine ankylosis. He had flexion to 70 degrees with pain at 35 degrees, extension to 20 degrees with pain at 15 degrees, left lateral flexion to 25 degrees with pain at 20 degrees, right lateral flexion to 22 degrees with pain, and left and right rotation to 25 degrees with pain. On April 21, 2009, the Veteran underwent lumbar spine surgery and was granted a temporary total rating through May 31, 2009. The Veteran's medical records do not document any lumbar spine range of motion limitations or demonstrate ankylosis of the entire thoracolumbar spine from June 1, 2009, to September 8, 2010. The Board notes that in July 2010, the Veteran was granted SSA disability for his lumbar spine. However, SSA records also do not document any lumbar spine range of motion limitations, or demonstrate ankylosis of the entire thoracolumbar spine. On September 9, 2010, the Veteran underwent lumbar spine surgery and was granted a temporary total rating through December 31, 2010. In March 2011, the Veteran's physician limited him to occasionally lifting 20 pounds, standing for no more than 20 minutes, and sitting for no more than 30 minutes. In June 2011, his physician noted that he was permanently disabled. A VA progress note, dated in March 2014, shows that Dr. W noted that there was "radiographic evidence of unfavorable ankylosis in part." On examination, the Veteran had flexion to 45 degrees, and extension to 5 degrees. He opined that, based on the Veteran's long history of prior surgeries, "it seems to me" that the Veteran would be eligible for more than 20 percent to 30 percent service connectivity as previously described." At a June 2014 VA examination, the Veteran reported that he had constant severe back pain. On examination, the examiner indicated that he had flexion to 60 degrees with pain, and extension to 10 degrees with pain. The examiner indicated that the Veteran refused to perform left and right lateral flexion. The examiner indicated that the Veteran had left and right rotation to 10 degrees with pain. After repetitive use, the examiner indicated that the Veteran's lumbar spine had less movement than normal with pain on movement, but that he did not have additional limitation in his range of motion. The examiner indicated that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. Given the foregoing, prior to January 23, 2015, the Veteran's treatment records do not show limitations in his lumbar spine range of motion consistent with a 40 percent rating. At the September 2008 VA examination, he had flexion to 70 degrees, with pain at 35 degrees. Thus, even accepting a limitation of flexion to 35 degrees, the criteria for an increased rating are not shown. Powell. In March 2014, he had flexion to less than 45 degrees. At his June 2014 VA examination, the Veteran had flexion to 60 degrees. In summary, there is no evidence to show forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that the Veteran has ankylosis of the entire thoracolumbar spine. DC 5237; General Rating Formula. Accordingly, the claim must be denied. In reaching this decision, the Board has considered that a VA progress note, dated in March 2014, shows that Dr. W noted that there was "radiographic evidence of unfavorable ankylosis in part." However, by its terms, this report notes only "radiographic evidence" that was "in part." The associated clinical findings in the report show that on examination, the Veteran had flexion to 45 degrees, and extension to 5 degrees. In addition, the July 2014 VA examination report indicated that there was unfavorable ankylosis of the entire thoracolumbar spine. The associated clinical findings in the report show that on examination, the Veteran had flexion to 60 degrees, and extension to 10 degrees. In the September 2008 VA examination report, it was noted that there was no ankylosis of the thoracolumbar spine. Given the foregoing, the Board finds that unfavorable ankylosis of the entire thoracolumbar spine, as defined in Note (5) of the General Rating Formula, is not shown; the evidence is insufficient to show that the Veteran's thoracolumbar spine is fixed in either flexion or extension. The Board further notes that its conclusion is consistent with subsequently-dated medical evidence, which shows that in April 2015, it was stated that, following a review of the Veteran's claims file, that he does not have ankylosis of the entire thoracolumbar spine. Boggs v. West, 11 Vet. App. 334, 344 (1998) (holding that the Board may adjudge a more recent medical opinion to have greater probative value, particularly where the subsequent examiner had additional evidence available in rendering the opinion); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). As such, a rating in excess of 20 percent prior to January 23, 2015, is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and 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. 38 C.F.R. § 4.59. In this case, the Veteran has reported experiencing pain on range of motion. However, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). 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. Id. at 43; see 38 C.F.R. § 4.40. Here, even considering the Veteran's pain, he is shown to have had at least 35 degrees of flexion, which is in excess of the 30 degrees required for a rating in excess of 20 percent. The September 2008 VA examination report notes that there was no atrophy or guarding. There was spasm, pain with motion, and weakness. Gait was antalgic with poor propulsion. Strength at the hips, knees, and ankle (plantar flexion and dorsiflexion) was 4/5, bilaterally. Strength on great toe extension was 3/5, bilaterally. Muscle tone was normal. There was no atrophy. A sensory examination of the lower extremities was normal. Reflexes were 1+ at the knees and ankles, bilaterally. After repetitive use, his lumbar spine range of motion was not additionally limited. An associated X-ray contains an impression noting the appearance of fusion at L4, L5, and Sl, with narrowing of the interspaces of L4-5 and L5-Sl, and slight anterior listhesis of L3 on L4 and slight reverse listhesis of -L4 on L5. A VA C&P note, dated September 30, 2008, notes that the Veteran has 5/5 power at the bilateral lower extremities from L2 to S1, and that his sensation is decreased at the left foot. A number of VA progress notes show that the Veteran had 5/5 strength in his lower extremities. See e.g., reports, dated in July and November of 2008, January 2012, and November 2014. A VA X-ray report, dated in March 2011, contains an impression noting degenerative disc disease at L3-L4 and L4-L5, osteoarthritis. A VA X-ray report, dated in October 2011, contains an impression noting postoperative changes of posterior spinal fusion and bilateral laminectomy at L3-L4, and interspace narrowing at L3-L4 and L4-L5. A March 2013 VA MRI (magnetic resonance imaging) study contains an impression of multilevel disc degenerative disease, most pronounced at L2-L3, broad-bulging annulus at L2-L3 superimposed on retrolisthesis of L2 on L3, with moderate to severe canal stenosis and moderate bilateral foraminal narrowing, and posterior fusion of L3 on L4 with bilateral rods and transpedicular screws, and a crossbar at L3-L4, with bony posterolateral fusion extending from L4 to S1, and a decompressive laminectomy from L3 to S1. The June 2014 VA examination report notes that the Veteran complained of constant severe pain in his back that radiated to his hips. He denied flare-ups. While he had pain after repetitive use, he had no additional limitations of range of motion. There was functional loss is the form of less movement than normal. Strength at the hips, knees, ankle (plantar flexion and dorsiflexion), and on great toe extension, was 5/5, bilaterally. His symptoms did not cause an abnormal gait or abnormal spinal contour. Reflexes were 2+ at the knees and ankles, bilaterally. The diagnoses were lumbar DDD (degenerative disc disease) status post fusion 1988 and 2010, lumbar DJD (degenerative joint disease) with post-surgical changes, currently stable, and lumbar radiculopathy. A December 2014 MRI contains an impression noting interval postoperative changes with L3-L4 posterior lumbar fusion with L3, L4, and L5 laminectomy changes, bony fusion changes at L5-S1 posterior elements, overall progression of multilevel lumbar spine degenerative disc disease, and Grade I retrolisthesis of L2 on L3 with progression of disc disease at that level and moderate to severe central canal narrowing. In summary, while the Veteran has reported having pain, when the range of motion findings, and the evidence showing functional loss are considered, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 20 percent. The Board therefore finds that the criteria for a rating in excess of 20 percent are not shown to have been met, and the claim must be denied. B. As of January 23, 2015 In January 2015, the Veteran was diagnosed with lumbar spine arachnoiditis, a pain disorder of the spinal cord. In March 2015, he was noted to have flexion to 20 degrees. His physician opined that he was unemployable. In April 2015, a VA health care provider stated that the Veteran's claims file had been reviewed, that the Veteran has ankylosis from L3 to S1, but that "this is from surgical fusion and does not involve the entire thoracolumbar spine." A VA report, from Dr. K, dated in June 2016, states that the Veteran had flexion to 20 degrees, with extension and lateral tilting to 5 degrees, and lateral rotation to 45 degrees, bilaterally. The Veteran was noted to have been diagnosed with arachnoiditis, and to not be a surgical candidate. The physician (Dr. W) opined that the Veteran was not employable, and that he never would be employable due to his service-connected disabilities. In summary, on January 23, 2015, objective medical evidence showed that the Veteran was diagnosed with arachnoiditis. In March 2015, he had flexion to 20 degrees. In June 2016, the Veteran continued to have flexion to 20 degrees. As such, the Veteran consistently demonstrated findings consistent with a 40 percent rating following his diagnosis of arachnoiditis on January 23, 2015. The Board therefore finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that the criteria for a 40 percent rating are met as of January 23, 2015. A rating in excess of 40 percent is not warranted. Under the General Rating Formula for Diseases and Injuries of the Spine, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. As discussed supra, this has not been shown. Briefly stated, the Veteran is not shown to have unfavorable ankylosis of the entire thoracolumbar spine, as defined in Note (5) of the General Rating Formula. The evidence is insufficient to show that the Veteran's thoracolumbar spine is fixed in either flexion or extension. Accordingly, the criteria for a rating in excess of 40 percent are not shown to have been met. In addition, there is no evidence to show incapacitating episodes having a total duration of at least six weeks during a 12 month period. Consideration has been given to the Veteran's complaints of pain and functional loss of the lumbar spine. See DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9- 98, 63 Fed. Reg. 56704 (1998). However, the Board finds that the provisions pertaining to functional loss do not apply, as the Veteran is currently in receipt of the highest evaluation possible under a limitation of motion code. Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for consideration of functional loss of range of motion of a wrist due to pain inappropriate where rating currently assigned for limitation of motion was maximum available under the applied diagnostic code). C. Conclusion The Board has considered the Veteran's statements that he should be entitled to an increased rating. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his back symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period, other than as noted. The evidence of record from the day the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period, other than as noted. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the claimed disability such that an increased rating is warranted, other than as noted. In reaching this decision, to the extent the claim has been denied, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for an extraschedular rating is appropriate. This requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the types reported by the Veteran and by medical professionals on clinical evaluation. Significantly, the rating criteria include higher ratings where symptomatology of the appropriate degree is demonstrated. The Veteran is shown to have reported having, or been shown to have, symptoms such as back pain, weakness, and spasms. The RO clearly based its evaluation on the appropriate rating criteria. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). As such, referral for extraschedular consideration is not warranted. The Veteran has apparently not worked full-time since 1996, and the Social Security Administration has determined that he was disabled due to back symptoms. His claim for a TDIU is being remanded for additional development. However, an analysis under the second step of the Thun analysis is not warranted, as the Board has determined that the schedular evaluations adequately contemplate his levels of disability and symptomatology, and that this case is not an exceptional or unusual disability picture. Id. The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), the Board has not attempted to dissociate any back symptoms from the service-connected disability in issue. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions; the Veteran has not contended otherwise. Yancy v. McDonald, 27 Vet. App. 484 (2016). Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. The Veteran has been afforded examinations. Additionally, the Veteran testified at a hearing before the Board in April 2011. In January 2016, the Board remanded this claim. The Board directed that any records of treatment from the Wichita VAMC dated after April 2014 be obtained. Thereafter the claim was to be readjudicated, to include the issue of entitlement to an extension of a temporary total rating due to treatment requiring convalescence, in effect from September 9, 2010, to December 31, 2010, with consideration of all the evidence added to the claims file since the issuance of the February 2015 supplemental statement of the case. Additional VA treatment records were subsequently obtained, and in June 2016, the claims were readjudicated. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An extension of a temporary total rating due to treatment requiring convalescence is denied. Prior to January 23, 2015, a rating in excess of 20 percent is denied. As of January 23, 2015, a 40 percent rating is granted, subject to the provision governing the award of monetary benefits. REMAND The Veteran's medical records show that he has had significant limitations in his ability to work placed by his physician. In July 2010, the Veteran was awarded SSA disability benefits. In March 2011, his physician limited him to a reduced range of light work. In June 2011, his physician reported that he was permanently disabled. In March 2015, his physician opined that he was unemployable. Finally, in June 2016, his physician opined that he was not employable now, and never would be employable due to his service-connected disabilities. However, as of the date of this decision, the Veteran does not meet the scheduler threshold contained in 38 C.F.R. § 4.16(a). Thus, a TDIU may only be assigned on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Remand is thus required. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the Veteran's disability picture warrants the assignment of a TDIU on an extraschedular basis. 2. Readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs