Citation Nr: 1723536 Decision Date: 06/22/17 Archive Date: 06/29/17 DOCKET NO. 10-32 530 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent prior to June 10, 2015, and a rating in excess of 40 percent from that date, for low back pain with degenerative disc disease and spondylolisthesis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected low back pain with degenerative disc disease and spondylolisthesis, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Lauren Truitt, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant, wife, and daughter ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to June 1966. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2010 rating decision in which the RO granted service connection for low back pain with degenerative disc disease and spondylolisthesis and assigned an initial 10 percent rating, effective June 29, 2009. In July 2010, the appellant filed a notice of disagreement (NOD) with the assigned disability rating and effective date. A statement of the case (SOC) was issued in July 2010, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2010. Because the appeal involves disagreement with the initial rating assigned following the award of service connection for low back pain with degenerative disc disease, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In September 2010, the Veteran, his wife and daughter testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In December 2012, the Board remanded the Veteran's claims to afford the Veteran a Board hearing. In July 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In November 2013, the Board expanded the appeal to encompass the matter of entitlement to a TDIU due to service-connected low back disability (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)), denied the claim for an earlier effective date, and remanded the remaining claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC for further action. After accomplishing further action, in a July 2015 rating decision, the AMC assigned a rating of 40 percent for low back pain with degenerative disc disease and spondylolisthesis, effective June 10, 2015. However, the AMC continued to deny a rating in excess of 10 percent for the disability prior to June 10, 2015, and a rating in excess of 40 percent from that date, as well as denied a a TDIU due to the disability (as reflected in a July 2015 supplemental SOC (SSOC). Regarding characterization of the appeal, because the Veteran has disagreed with the initial rating assigned following an award of service connection, the Board has characterized the lumbar spine disability claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the Veteran has been assigned a higher for his service-connected low back disability from June 10, 2015, as higher ratings are potentially assignable before and after that date, and a claimant is presumed to seek the maximum available benefit for a disability, a claim for higher ratings at each stage remains viable on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). As for the matter of representation, the Board notes that, while the Veteran previously was represented by the Military Order of the Purple Heart, in June 2012, the Veteran granted a power-of-attorney in favor of Disabled American Veterans. Thereafter, in November 2015, the Veteran granted a power-of-attorney in favor of attorney Lauren Truitt (as reflected in a VA Form 21-22a, Appointment of Individual as Claimant's Representative). The Board has recognized the changes in representation. Also, while the Veteran previously had a paper claims file, his appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems., FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each the claim herein decided have been accomplished. 2. From the June 29, 2009 effective date of the award of service connection to June 10, 2015, the Veteran's low back pain with degenerative disc disease and spondylolisthesis was manifested by subjective complaints of pain and stiffness, objective findings of forward flexion to greater than 60 degrees but not greater than 85 degrees, a combined range of motion greater than 120 degrees but not greater than 235 degrees; there is no evidence that the Veteran experienced muscle spasm or guarding severe enough to abnormal gait or abnormal spinal contour, ankylosis, intervertebral disc syndrome (IVDS) or any neurological manifestation(s) of lumbar spine disability other than those for which separate ratings have been assigned. 3. Since June 10, 2015, the Veteran's low back pain with degenerative disc disease and spondylolisthesis has been manifested by subjective complaints of pain, objective evidence of forward flexion limited to 30 degrees or less; there is no evidence of ankylosis, IVDS or any neurological manifestation(s) of lumbar spine disability other than those for which separate ratings have been assigned. 4. The applicable schedular criteria are adequate to evaluate the disability under consideration at all pertinent points. 5. The weight of the competent, probative evidence indicates that the Veteran's service-connected low back disability has not prevented him from obtaining or retaining substantially gainful employment at any point pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to June 10, 2015, and a rating in excess of 40 percent from that date, for service-connected low back pain with degenerative disc disease and spondylolisthesis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2016). 2. The criteria for a TDIU due to low back pain with degenerative disc disease and spondylolisthesis, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A July 2009 pre-rating letter provided appropriate notice to the Veteran in connection with what was then a claim for service connection for a low back pain with degenerative disc disease and spondylolisthesis. After the April 2010 award of service connection for low back pain with degenerative disc disease and spondylolisthesis, and the Veteran's disagreement with the initial rating assigned, no additional notice for the downstream, initial rating issue was required under 38 U.S.C.A. § 5103A. See VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)). Nonetheless, the July 2010 SOC set forth the criteria for higher ratings for ankle disability (the timing and form of which suffices, in part, for Dingess/Hartman). There is no evidence or allegation of any deficiency in the notice provided. Notably, neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim for higher rating, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's October 2009 private chiropractic treatment, December 2009 VA examination, July 2010 VA examination, and June 2015 VA examination (as requested by the Board in its September 2013 remand). This evidence reflects compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional, existing evidence necessary for a fair adjudication of the claim that has not been obtained. Also of record and considered in connection with the appeal is the transcript of the Board hearing, along various written statements provided by the Veteran and by his representative, on his behalf. Notably, during the July 2013 Board hearing, the undersigned Veterans Law Judge identified the issues on appeal, to include the current claim for a higher initial rating for low back pain with degenerative disc disease and spondylolisthesis. The Veteran provided testimony regarding his service-connected disability, symptoms thereof. The hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the undersigned Veterans Law Judge pertaining to the Veteran's post-service treatment and the bases for the denial of the claim. Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, such omission was harmless, as further development of the claim was subsequently undertaken, and additional evidence was received. See 38 C.F.R. § 3.103 (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Furthermore, as noted, the Board has found that AOJ has substantially complied with the Board's remand directives, to the extent possible, and there is no evidence or allegation of any error or omission in the assistance provided. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the higher rating claims on appeal. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. As such, the Veteran is not prejudiced by the Board proceeding to a decision on each matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. As the Veteran already has been assigned staged ratings for his service-connected low back disability, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted. The ratings for the Veteran's lumbar spine disability have been assigned under Diagnostic Code 5242(for degenerative arthritis of the spine). However, all spine disabilities are rated pursuant to the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. The General Rating Formula provides for assignment of a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). See also 38 C.F.R. § 4.71a, Plate V. 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. Id. at Note (5). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, disability involving disc disease may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for 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 for 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 for 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 for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board acknowledges that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claim (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, however, a remand for compliance with Correia is not required, as retroactive range of motion findings cannot be provided for the period prior to June 10, 2015, and higher ratings for the period from that date require showings of ankylosis or IVDS with incapacitating episodes. In August 2000, Dr. G.D.H submitted a letter stating that that the Veteran had back pain and that X-rays revealed changes that could be consistent with arthritis of the spine. Dr. G.D.H. explained that although the Veteran is tolerating the pain well, it would benefit him to rest as often as possible as needed for back pain. An October 2009 private chiropractic treatment record shows that the Veteran was diagnosed with spondylolisthesis and significant degenerative changes of the spine. There is no indication of ankylosis or any range of motion testing within those records. However, the Veteran described constant pain in his lower back when standing, walking, or with general activity. The Veteran was afforded a VA examination in December 2009. He then explained that his low back disability has existed for 46 years prior to the VA examination. He noted his symptoms associated with his spinal condition as stiffness, fatigue, spasms, and decreased motion. The Veteran reported that his back disability impairs his every physical body motion. Range of motion testing revealed flexion to 90 degrees. Extension was to 30 degrees. Right lateral flexion and left lateral flexion were both to 30 degrees. Right and left rotation was to 30 degrees, each. Pain on motion was not reported. Joint function was additionally limited by pain following repetitive use. There was no fatigue, weakness, lack of endurance or incoordination following repetitive use and there was no further loss of motion following repetitive use. There were no signs of intervertebral disc syndrome and a neurological examination was normal. Lumbar spine X-rays showed joint narrowing. Muscle spasms were absent. The Veteran was afforded another VA examination in July 2010. The Veteran reported that any activity increases the pain in his back. The Veteran reported constant pain that ranges between 7 or 8 on a scale of 1 to 10. The Veteran also reported no history of hospitalization and not having surgery. The Veteran did not report flare-ups of his low back disability. Range of motion testing revealed flexion to 75 degrees with pain starting at 70 degrees. Extension was to 20 degrees with no objective evidence of painful motion. Right and left lateral flexion was to 30 degrees, each, with no objective evidence of painful motion. Right and left lateral rotation was to 45 degrees, each, with no objective evidence of painful motion. Repetitive-use testing revealed additional limitation of motion. There was no guarding, atrophy, tenderness, weakness, or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal. The examiner noted that the Veteran worked as an aircraft mechanic and is not currently employed. The Veteran retired one year prior to this exam due to age or duration of work. However, the Veteran reported that any type of bending and lifting causes pain and that does not allow him to do much work at home. During the September 2013 Board hearing, the Veteran testified that he has had to quit a few jobs that he enjoyed because of his back. He reported back pain and that he experiences muscle spasms about once a month. He reported taking ibuprofen for his low back and the he occasionally takes hydrocodone if he is in a lot of pain. The Veteran testified to having trouble performing household tasks and going out with his wife. The Veteran testified that his low back disability had worsened since his December 2009 VA examination. The Veteran was afforded a VA examination in June 2015. He then reported being unable to stand in one place for over 30 minutes at a time, and having to sit down to relieve back pain. The Veteran also reported that bending and twisting makes the back pain worse. The Veteran reported that flare-ups impact his lower back because he is unable to straighten his back for hours during a flare-up and that he has to lie down, rest, and take medication until the pain is gone. Range of motion testing revealed flexion to 30 degrees, where pain began. Extension was to 5 degrees, where pain began. Right lateral flexion was to 20 degrees, where painful motion began at 15 degrees. Left lateral flexion was to 25 degrees, with painful motion beginning at 20 degrees. Right and left lateral rotation was to 20 degrees, each, where pain began. Repetitive-use testing revealed no additional limitation of motion. The examiner stated that the Veteran does not have functional loss and/or functional impairment of the thoracolumbar spine. However, there were muscle spasms that were severe enough to result in abnormal gait. Muscle strength testing was normal. Mild right and left lower extremity radiculopathy was the only neurological impairment shown. There was no evidence of intervertebral disc syndrome. The examiner reported that he is unable to complete farm chores independently and he is unable to walk over 300 yards without stopping to rest and that he is unable to get 8 hours of sleep at night related to pain in his back. Considering the above-cited evidence in light of the applicable rating criteria and rating principles, the Board finds no higher rating for lumbar spine disability is assignable. For the period from June 29, 2009 to June 10, 2015, a rating in excess of 10 percent under the General Rating Formula is not warranted. There is no evidence that flexion was limited to 60 degrees. Indeed, on December 2009 VA examination, flexion was only limited to 90 degrees, and on July 2010 VA examination, flexion was only limited to 75 degrees, with pain starting at 70 degrees. Further, there is no evidence that combined range of motion was limited to 120 degrees, which also was not shown at the December 2009 or the July 2010 VA examinations. There was also no evidence of any ankylosis. Finally, there was no evidence that the Veteran experienced muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Without any evidence of such, a rating in excess of 10 percent is not warranted for the period from June 29, 2009 to June 10, 2015. In addition, for the period since June 10, 2015 forward, a rating in excess of 40 percent under the General Rating Formula also is not warranted. As noted, rating in excess of 40 percent requires a showing of ankylosis, which, in this case, has not been medically shown. In reaching the above conclusions, the Board has considered the extent of functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with the criteria under the General Rating Formula for the Spine. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07; Johnson, 9 Vet. App. at 7. With regard to the period prior to June 10, 2015, the Board recognizes that, although the July 2010 VA examiner noted objective evidence of pain on motion, the examiner found that the Veteran's range of motion was not limited following repetitive-use testing, and there was no additional functional loss due to fatigue, incoordination, weakness, or lack of endurance. Given the range of motion demonstrated by the Veteran at these examinations, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 60 degrees or combined range of motion to 120 degrees-which is consistent with the 10 percent rating under the General Rating Formula-even after taking the Veteran's accounts of pain and flare-ups into consideration. Notably, the period from June 10, 2015, the Veteran has been granted the maximum rating possible for limitation of motion for the lumbar spine; hence, analysis based on the DeLuca factors would not result in a higher schedular rating, and need not be considered for this period. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary when the appellant is in receipt of the maximum rating for limitation of motion). Additionally, the Board notes that no separate rating for any additional neurological manifestation(s) is warranted at any point since the effective date of the award of service connection. As discussed above, the Veteran has already been assigned separate ratings for radiculopathy affecting each lower extremity, and he has not disagreed with the assigned effective dates or ratings for those disabilities. There is also no medical evidence that the Veteran experiences any separately rating neurological manifestation of lumbar spine disability other than radiculopathy. Without any showing of any other neurological manifestations, no additional, separate rating(s) is/ are not warranted. Finally, the Board finds that the Formula for Rating IVDS Based on Incapacitating Episodes also provides no basis for assignment of any higher rating for lumbar spine disability at any point since the effective date of the award of service connection, as there is no medical evidence that the Veteran has IVDS. Notably, the December 2009 and June 2015 VA examiners stated that the Veteran does not experience IVDS, and there is otherwise no medical showing of IVDS. As such, evaluating the disability under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any pertinent point, the Veteran's lumbar spine disability has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's lumbar spine disability at all pertinent points. The rating schedule fully contemplates the symptoms associated with the disability, to include limited range of motion, functional loss, and pain, and there are no additional symptoms or manifestations of his disability that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected low back pain with degenerative disc disease and spondylolisthesis. As such, the Board finds that the rating schedule is adequate to evaluate his disability, and the Board need not proceed to consider the second factor, viz., whether there are attendant related factors such as marked interference with employment or frequent periods of hospitalization. The Board further notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. Here, however, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). Accordingly, this is not an exceptional circumstance for extra-schedular consideration within the meaning of Johnson. Under these circumstances, the Board concludes that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met, and that referral of the claim for extra-schedular consideration is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all of the forgoing reasons, the Board finds that there is no basis for any further staged rating of the low back pain with degenerative disc disease and spondylolisthesis, pursuant to Fenderson, and that a higher rating at each stage must be denied. In reaching these determinations, the Board has considered the applicability of the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher or separate rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. TDIU The Veteran has asserted that his service-connected low back pain with degenerative disc disease and spondylolisthesis prevents him from securing or following a substantially gainful occupation. As previously mentioned, in November 2013, the Board expanded the appeal to include the matter of entitlement to a TDIU due to low back pain with degenerative disc disease and spondylolisthesis pursuant to Rice, supra. Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of Compensation and Pension Service for extra-schedular consideration. See 38 C.F.R. § 4.16(b). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (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 or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Pertinent to the current claim for a TDIU, the Veteran has been awarded service connection for multiple disabilities. However, as this TDIU claim emanates from the Veteran's claim for a higher rating for low back disability, the sole inquiry is whether service-connected low back pain with degenerative disc disease and spondylolisthesis, alone, renders the Veteran unemployable. See Rice, supra. In this case, the Veteran's does not meet the basic percentage requirements for a schedular TDIU due to the low back disability at any point since the effective date of the award of service connection for that disability. Nevertheless, as mentioned above, a TDIU may still be awarded, on an extra-schedular basis, and pursuant to specially prescribed procedures, if the Veteran is shown to unable to secure or follow a substantially gainful occupation by reason of his service-connected disability. See 38 C.F.R. § 4.16 (b). Thus, in this case, the Board must determine whether the evidence indicates that the Veteran's service-connected low back disability precludes or has precluded gainful employment consistent with his education and occupational experience at any point pertinent to the appeal. In this case, however, the Board finds that his weight of the evidence indicates that the Veteran's low back pain with degenerative disc disease and spondylolisthesis, alone, has not rendered him unemployable. In a September 2010 VA examination report, the examiner noted that the Veteran was not currently employed because he had retired a year before the examination due to age or the duration of work. The examiner found that there were no effects of the Veteran's back on his daily activities. The examiner further noted that the Veteran claimed that any bending or lifting caused pain, and that he is not able to do much at home as a result. During the February 2010, DRO hearing, the Veteran testified that he could stand and work at his workbench for up to five hours before needing to sit down or leave work. The Veteran elaborated that he did not have a problem as he had a bench he could sit on while working and did not have a problem with his back. The Veteran stated that his employer decided they wanted the employees to stand up to do their work at the station. The Veteran claimed that he worked in that condition for three weeks before he resigned. The Veteran further stated that he really liked the job and that he was well qualified to do that job, which included working on aircraft cabinets but that he could not handle to work on those cabinets standing up. The Veteran further described that he had to quit previous similar jobs as well because he was unable to stand on concrete surfaces. In a March 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran noted that he left his previous employment because of his disability. The Veteran further noted that he has not tried to obtain employment since he became "too disabled to work." He wrote that he was self-employed from 2001 to 2009 with Hot Shot Hauling. The Veteran noted that he completed high school and did two years of college with training as in aircraft maintenance. In a June 2015 VA examination report, the examiner noted that the Veteran's back disability impacted his ability to work. The examiner elaborated that the Veteran is unable to complete farm chores independently because he is unable to stand for over 30 minutes without provoking painful muscle spasms in lower back. The examiner further noted that the Veteran is unable to walk over 300 yards without stopping to rest and unable to get eight hours of sleep at night related to pain in his back that occurs with lying on his right side. The Board acknowledges that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, medical evidence addressing the functional effects of the Veteran's disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10 (2015); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this regard, the Board notes that a July 2010 VA examiner provided findings s specifically addressing the functional effects of the Veteran's low back pain with degenerative disc disease and spondylolisthesis. The examiner offered that the Veteran was an aircraft mechanic but he retired a year before the examination due to age or duration of work. The examiner concluded that any type of bending and lifting results in pain at which point the Veteran is unable to do much at home. Subsequently, the June 2015 VA examiner noted that Veteran's inability to complete arm chores independently and to stand for over 30 minutes without provoking muscle spasms in his lower back. The Board finds it noteworthy, however, that, although each examiner noted that the Veteran inability to perform tasks that require him to bend and lift, or stand for a prolonged period-such as those required, at times, in his prior employment-neither examiner specifically referenced any findings indicating, or opined, that the Veteran is unable to work in a sedentary capacity, and there is otherwise no evidence that such would be precluded, if the Veteran had sought or is seeking such employment. The Board emphasizes that the current 40 percent rating assigned for the Veteran's service-connected low back pain with degenerative disc disease and spondylolisthesis, in itself, contemplates significant impact on the Veteran's activities of daily living, to include employment. However, the disability is not shown to have risen to a level to render him unable to secure and follow a substantively gainful occupation at any point pertinent to this appeal. The collective medical and other evidence demonstrates the Veteran's capability to perform the physical and mental acts required for employment. During his February 2010 DRO hearing, he elaborated that he really enjoyed his job with a company working on aircraft cabinets, but ultimately had to resign after he was required by his employer to work standing. However, the Veteran described that he was able to perform the job well without an impact to his back when he was able to work sitting down on a bench. Although the Veteran noted that in his March 2013 VA Form 21-8940 that he had retired due to his disability, he did not provide specific information as to how his back disability impacted his ability to work at any job (and not just his former job). In this regard, it is noteworthy that has acknowledged not seeking any employment after retiring. The Board observes that, in this case, a TDIU is not warranted even if functional impact of the separately ratable neurological manifestations of the his lumbar spine disability-radiculopathy affecting the right and left lower extremities, rated as 10 and 20 percent disability, respectively-are also considered. Such combined effects were considered by the June 2015 VA examiner who noted that the Veteran is unable to stand for over 30 minutes and that is unable to walk for more than 300 yards. However, there is medical or other objective evidence to even suggest that the Veteran was or is unable to work in a sedentary position. As noted, the Veteran graduated from high school, completed two years of college, and has training in aircraft maintenance. Based on his education and work experience during the periods in question, there are some transferable skills that could have enabled him to be successful in a sedentary position, and also various low skill level sedentary positions that the Veteran may have been able to engage in. However, the Veteran did not seek further employment, sedentary or otherwise, after retiring in 2009. In evaluating the current claim, the Board has considered the Veteran's assertions. However, to whatever extent he contends that he is or has been rendered unemployable due to his service-connected back disability at a point pertinent to this appeal, the Board emphasizes that the Veteran is not shown to possess any expertise in medical or vocational matters so as to competently opine on such a matter (see, e.g., 38 C.F.R. § 3.159 (2014) and Bostain v. West, 11 Vet. App. 124, 127 (1998)), and, as indicated above, the competent medical and other objective evidence on this point simply does not support such an assertion. For all the foregoing reasons, the claim for a TDIU due to service-connected low back pain with degenerative disc disease and spondylolisthesis disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER The claim for an initial rating in excess of 10 percent prior to June 10, 2015, and a rating in excess of 40 percent from that date, for low back pain with degenerative disc disease and spondylolisthesis, is denied. A TDIU due to low back pain with degenerative disc disease and spondylolisthesis, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs