Citation Nr: 1757762 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 05-14 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss disability and, if so, whether service connection is warranted. 2. Entitlement to an increased rating in excess of 20 percent for the Veteran's lumbar spine degenerative joint disease for the period prior to December 28, 2010. 3. Entitlement to an increased rating in excess of 40 percent for the Veteran's lumbar spine degenerative joint disease for the period on and after December 28, 2010. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) for the period prior to October 4, 2010. WITNESSES AT HEARING ON APPEAL The Veteran and the Appellant ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1993 to January 2001. The Appellant is the Veteran's legal custodian. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the St. Louis, Missouri, Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for bilateral hearing loss; denied service connection for tinnitus; and denied an increased disability evaluation for the Veteran's lumbar spine degenerative joint disease. In January 2008, the Board remanded the Veteran's appeal to the RO for additional action. In September 2010, the Board determined that new and material evidence had not been received to reopen the claim of entitlement to bilateral hearing loss and remanded the issues of service connection for tinnitus and an increased evaluation for the Veteran's lumbar spine disorder to the RO for additional action. In February 2012, the Board noted that the Veteran had requested a hearing before a Veterans Law Judge sitting at the RO in an August 2009 written statement; vacated that portion of its September 2010 decision which determined that new and material evidence had not been received to reopen the claim of entitlement to bilateral hearing loss; and remanded the Veteran's appeal to the RO so that he could be scheduled for the requested Board hearing. In April 2012, the RO increased the evaluation for the Veteran's lumbar spine degenerative joint disease from 20 to 40 percent and effectuated the award as of December 28, 2010. In May 2012, the RO denied a TDIU. In July 2012, the Veteran withdrew his request for a hearing before a Veterans Law Judge and requested a hearing before a VA Decision Review Officer (DRO). In September 2012, the Veteran was afforded the requested DRO hearing. A hearing transcript was prepared and incorporated into the record. In October 2012, the RO granted service connection for major depressive disorder and posttraumatic stress disorder (PTSD); assigned a 100 percent schedular evaluation for that disability; effectuated the award as of October 4, 2010; and proposed that the Veteran be found to be incompetent to handle his VA benefits. In March 2013, the Veteran was found to be incompetent to handle his VA benefits. In May 2013, the Appellant was recognized by VA as the Veteran's legal custodian. The United States Court of Appeals for Veterans Claims (Court) has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Therefore, in March 2016, the Board determined that the issue of entitlement to a TDIU for the period prior to October 4, 2010, is currently on appeal. It will be addressed below. In March 2016, the Board also remanded the Veteran's claims for further development. The remand required the RO to take appropriate steps to request any updated treatment records, VA clinical records, and SSA records. Such records were requested and associated with the claims file, and the Veteran was sent a development letter regarding his lumbar spine claims. The directives having been substantially complied with, and the matter is again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Appellant's appeal has been obtained. 2. A January 2001 rating decision denied service connection for bilateral hearing loss on the basis that there was no evidence of current bilateral hearing loss for VA purposes. The Veteran did not initiate an appeal of the adverse determination. 3. The evidence received since the January 2001 rating decision is either cumulative or redundant. It does not bear directly and substantially upon the specific matter of whether the Veteran currently has bilateral hearing loss; and when considered with all of the evidence of record, it has no significant effect upon the facts previously considered. 4. For the period from January 21, 2001 to December 28, 2010, the Veteran's lumbar spine degenerative joint disease was manifested by forward flexion to 10 degrees with pain, extension to 3 degrees with pain, bilateral lateral bending to 10 degrees with pain, and bilateral rotation to 10 degrees with pain; with moderate limitation of motion of the lumbar spine, painful motion, muscle spasm, weakness and tenderness, and positive straight leg raising. 5. For the period from December 28, 2010 to the present, the Veteran's lumbar spine degenerative joint disease is manifested by forward flexion of the lumbar spine of 30 degrees and extension of 0 degrees, with normal left and right lateral flexion. 6. The criteria for a TDIU for the period prior to October 4, 2010 are not met as the Veteran was working and has demonstrated education and capacity for substantially gainful employment. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for an increased rating in excess of 20 percent for the Veteran's lumbar spine degenerative joint disease for the period prior to December 28, 2010 are not met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for an increased rating in excess of 40 percent for the Veteran's lumbar spine degenerative joint disease for the period from December 28, 2010 to the present are not met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2017). 4. The Veteran failed, without good cause, to complete required VA development in conjunction with his claim for a TDIU. Evidence previously associated with the claims file does not establish entitlement to the benefit requested. 5. The Veteran was employed a security guard, with the ability to walk and perform his duties. He was able to maintain substantially gainful employment since at least prior to October 4, 2010. 6. The Veteran's service connected disabilities; an acquired psychiatric condition to include major depressive disorder/post-traumatic stress disorder, degenerative joint disease of the lumbar spine, diabetes mellitus, hypertension, residuals of right foot fracture, tinnitus, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, pseudofolliculitis barbae, peripheral neuropathy of the right upper extremity, and peripheral neuropathy of the left upper extremity; do not preclude him from securing or following substantially gainful employment. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In compliance with the March 2016 remand directives, a development letter dated April 18, 2016 was sent to the Veteran. The letter requested additional information to substantiate the Veteran's claims. In particular, it requested him to complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information, so that VA can obtain treatment records on the Veteran's behalf. No response is of record. The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Finality of Bilateral Hearing Loss Claim The Veteran is seeking to reopen his claim of entitlement to service connection for bilateral hearing loss. The claim was previously denied by a January 2001 rating decision on the basis that the evidence failed to show current bilateral hearing loss for VA purposes. The Veteran did not appeal the January 2001 rating decision. That decision is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.150(d), 20.302, 20.1103 (2017). On September 13, 2010, the Board issued a decision denying the Veteran's petition to reopen his previously-denied claim of entitlement to service connection for bilateral hearing loss. However, in an August 2009 statement, the Veteran asserted that he desired to present oral testimony at a Travel Board hearing in support of his claims. See August 2009 statement from the Veteran. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Before the Board issued its September 13, 2010, decision, the Veteran, in a statement received by the RO in August 2009, requested a hearing before the Board at the RO. In February 2012, the Board found that the criteria for vacating the portion of the Board's September 2010 decision which denied the Veteran's petition to reopen his previously-denied bilateral hearing loss claim had been met, and remanded his claim for additional development. The Board found that a failure to afford the Veteran a hearing would amount to a denial of due process. In March 2016 the Board remanded the Veteran's claims for additional development. SSA and VA treatment records have been associated with the claims file, and the Veteran was given an opportunity to identify any additional evidence. It is noted that a VA Audiological examination was conducted on October 15, 2010 which showed that the Veteran do not have hearing loss for VA purposes. Under the applicable criteria disability ratings are determined by an application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). VA treatment reports, including those from dated November 10, 2010 to October 6, 2011, also do not show hearing loss for VA purposes. The Veteran and his custodian testified before a Decision Review Officer (DRO) at a September 2012 hearing at the St. Louis, Missouri RO. The Veteran's custodian testified regarding his hearing loss, reporting, "I guess, that had something to do with shooting a guns or whatever, that...I guess, I don't know where he got that from, I guess that came from service related, too...you know...loud noises and all that." The DRO also reviewed the record and indicated that there was no objective evidence of a hearing loss disability for VA purposes. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. Reviewing the evidence submitted by the Veteran in his attempt to reopen his claim, the Board finds that he has not submitted new and material evidence. The January 2001 rating decision denied the Veteran's claim on the basis that, while a previous 1999 audiogram showed evidence of bilateral hearing loss for VA purposes, all subsequent audiogram results failed to show evidence of bilateral hearing loss for VA purposes. The evidence received since the January 2001 rating decision does not relate to a previously unestablished fact that would tend to substantiate the Veteran's claim. Significantly, the material associated with the claims folders since January 2001 fails to reveal that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. The December 2009 VA audiological examination revealed audiometric findings indicative of normal bilateral hearing for VA purposes. The findings in October 2010 were substantially the same. The Veteran has not submitted competent medical findings pertaining to currently diagnosed bilateral hearing loss. This was confirmed by the September 2012 hearing testimony. The additional medical evidence received does not raise a reasonable possibility of substantiating the claim because it is substantially the same as previous evidence indicating the Veteran does not having a hearing loss disability for VA purposes. For these reasons, the Board determines the evidence submitted subsequent to the January 2001 rating decision is either cumulative or redundant of evidence previously submitted and does not relate, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, and, in any event, does not raise a reasonable possibility of substantiating his claim. Consequently, the evidence received since the last final disallowance of the Veteran's claim is not new and material, and his petition to reopen the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5108. III. Rating of Lumbar Spine Degenerative Joint Disease 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citing 38 U.S.C. §§ 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has significantly changed and a uniform evaluation is not warranted. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); see DeLuca v. Brown, 8 Vet. App. 202 (1995). VA's Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, 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 30 percent evaluation is awarded when (1) forward flexion of the cervical spine is limited to 15 degrees or less or (2) there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Under Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) provides that 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has changed, and staged ratings are warranted. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). By way of procedural history, the Veteran was granted service connection for lumbar spine degenerative joint disease in January 2001. He filed a claim for increased evaluation that was received in September 2003. In December 2003, he had reported that his condition worsened. A March 2004 rating decision continued a 20 percent evaluation. In April 2012, the RO increased the evaluation for the Veteran's lumbar spine degenerative joint disease from 20 to 40 percent and effectuated the award as of December 28, 2010. The Veteran's lumbar spine degenerative joint disease is currently rated at 20 percent prior from January 21, 2001 to December 28, 2010, and 40 percent from December 28, 2010. Ongoing VA treatment reports show continued impressions of degenerative joint disease of the lumbar spine and treatment for his associated low back pain. This condition is characterized by decreased range of motion and tenderness. The Veteran was afforded a VA examination in December 2003. He reported back pain on a daily basis not characterized by flare-ups. His average daily back pain is an eight out of ten in intensity level. It is made worse with prolonged standing, fifth metatarsal in 1999. There were impressions of chronic lumbar strain. The Veteran was afforded an October 2006 VA examination. He reported pain on a daily basis. The pain radiates to his thighs. His pain level is reported at a 5 to 7 out of 7. It is made worse with prolonged standing, walking, and sitting. It is relieved by Tylenol 3 and hot baths. He has a back brace that he wears as needed. He has missed about 15 days of work in the last year because of his back. He has avoided bending and is unable to participate in sports. He has not been incapacitated in the last year because of his back. A physical examination revealed no abnormal curvatures, or spasm. He has subjective tenderness at the level of L4-L5. Active range of motion was greatly diminished. Forward flexion was to 10 degrees with pain (90 degrees is normal), extension was to 3 degrees with pain (30 degrees is normal), bilateral lateral bending was to 10 degrees with pain (30 degrees is normal), and bilateral rotation was to 10 degrees with pain (30 degrees is normal). Repetitive motion testing revealed no further functional impairments due to pain, fatigue, incoordination, or instability. The VA examiner asked the Veteran to give him his best effort, and he questioned whether that was done during the examination. Earlier in the examination, the Veteran was able to remove his sweatpants by standing on one leg and reach down to the other foot to remove the pant from the ankle. At that point he was able to flex the spine to at least 60 degrees with no apparent difficulty. It was the opinion of the examiner that the Veteran did not give his best effort and the VA examiner consequently did not consider the range of motion findings, to be accurate. Contemporaneous MRI findings showed L4-5 minimal disc protrusion without spinal canal stenosis and L5-S 1 disc herniation producing mild to moderate spinal canal stenosis. The Veteran was afforded a September 2008 VA examination. His overall health status appeared good. He walked with no limp. He walked normally on the heels and toes, evidencing good balance and coordination. His stature is erect. He had no scoliosis. There was a normal lumbar lordosis. There was no muscle spasm. The pelvis was level. Range of motion as measured with goniometer on repetitive testing demonstrates 30 degrees of right and left rotation, 70 degrees of flexion, 20 degrees right and left lateral bending, and 10 degrees of back extension, which are accompanied by complaints of pain at the extremes of motion. There was no localized tenderness in the lumbar spine or the buttocks. There are no surgical scars. Sitting posture was normal. Straight leg raise in the sitting position was 90 degrees with no pain. Straight leg raise in the supine position was 70 degrees with complaints of low back pain. Hip ranges of motion bilaterally are full and complete without restriction. The Veteran was able to sit up from the supine to sitting position in a normal fashion. On February 6, 2001, the Veteran had x-rays of the lumbar spine, which were negative. On December 01, 2003, lumbosacral spine x-rays were also negative and normal. On April 26, 2006, x-rays of the lumbar spine were negative and, normal. On May 18, 2007, x-rays of the lumbosacral spine were negative and normal. The computed tomography scan on May 18, 2007, shows normal levels at L1-L2, L2-L3, and L3-L4 with posterior disc bulging at L4-5 and L5-S 1. The VA examiner found impressions of chronic lumbar strain. The Veteran was also afforded a December 2009 VA examination. He walked with a slight limp favoring the right foot, and as a result refused to stand or attempt walking on his heels or toes. He stood erect and had no scoliosis. He had no loss of lumbar lordosis. He had no muscle spasm. Range of motion done repetitively and measured with goniometer 20 degrees right and left rotation, 60 degrees flexion, 5 degrees of extension, 20 degrees right lateral bend, and 25 degrees left lateral bend and after the final range of repetitive motion there is increased pain, fatigability, weakness, and lack of endurance regarding the low back, but no incoordination. His sitting posture was normal during the course of the examination. With attempting to test the strength of anterior tibial and extensor halluces longus, the Veteran provided provided little effort. Therefore, the VA examiner opined that the exact strength of these two muscles could not be evaluated adequately. Straight leg raise sitting as done easily to 90 degrees bilaterally with no complaints. However, the Veteran vigorously resisted straight leg raise at 30 degrees bilaterally when supine. Views of the lumbar spine were negative with normal disc spaces and no hypertrophic degenerative changes seen. The VA examiner's assessment was chronic lumbar strain. The VA examiner reported that routine x-rays show no evidence of degenerative disease of the lumbar spine. However, the imaging studies showing disc bulges do not necessarily, as has been shown in the literature, have any specific relationship to symptoms or true degenerative change. However, the current magnetic resonance imaging done at St. Louis University, which does indicate disc desiccation (which is a finding of degenerative disc disease) at L5-S 1 with an essential annular tear at L5-S 1, would suggest that the Veteran was now showing evidence of degenerative disc disease in the lumbar spine, whereas previous studies did not so indicate. The VA examiner reported that degenerative disc disease of the lumbar spine is at least as likely as not etiologically linked to the service-connected degenerative joint disease of the lumbar spine. The Veteran was afforded a VA examination in October 2010. On inspection, spine, limbs, posture and gait, position of the head and curvature of the spine appeared normal. Flexion of the lumbosacral spine was 60/90 and extension was 10/30. Lateral flexion on each side was 20/30 and rotation on each side was 30/30. The VA examiner noted that by observation, it was not quite evident that maximum effort had been put into the range of motions. There is no objective evidence of pain, but then pain is only a subjective phenomenon. There is no objective evidence of painful motion, spasm, weakness, tenderness, atrophy or guarding. No ankylosis was noted. There was no additional loss of joint function with repetitive use on account of pain, weakness, fatigue, lack of endurance, or incoordination. The VA examiner highlighted that the Veteran had multiple regular x-rays of the lumbosacral spine obtained over the years and all have been normal. The VA examiner found impressions of mild degenerative disc disease and degenerative joint disease of the lumbosacral spine. VA treatment records show impressions of and treatment for a lumbar spine condition at the St. Louis VA Medical Center (VAMC). Of note, upon clinical examination on December 28, 2010, the Veteran's forward flexion of the lumbar spine was 30 degrees (90 degrees is normal) and extension was 0 degrees (30 degrees is normal). Left and right lateral flexion were normal. A report from England Company Rehabilitation Services Inc. also relates the Veteran's claimed increased symptoms to a motor vehicle accident in July 2011 and a work related injury in 2011. In conjunction with his claim for entitlement to a TDIU, the Veteran was afforded an April 2012 VA examination to evaluate the severity of his lumbar spine condition. The Veteran was accompanied by his mother. From the initial greeting he was very surly, angry, and noncommunicative. He sat down along with his mother. He would not look or speak to the VA examiner. The physician explained to them that he is here for evaluation of numerous service connected conditions, and that the physician had many questions. He explained that he cannot guess at answers. The Veteran remained sitting there looking down and not speaking. The physician asked if he/they would like to reschedule for another time, and that the physician would communicate that to the Regional Office. The Veteran said, "F- the Regional Office." The Veteran indicated we should proceed. When the physician asked simple questions, such as the approximate date of onset of his diabetes, hypertension, etc., the Veteran said "all that f-ing information is in my f-ing records." He asked if the VA examiner was a Veteran. When the VA examiner indicated that he was not, the Veteran asked "why the f- am I even talking to you?" The meeting adjourned at that point. The mother was quiet and seemed somewhat embarrassed. The physician told her that he hoped she understood the difficulty of this situation. The physician noted that this attempt at conducting an appropriate C&P exam was extremely difficult and went nowhere. No evaluation was possible. Consequently, this VA examination report can't be used due to the Veteran being uncooperative, and the Veteran's claim must be evaluated based upon the other evidence of record. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The Veteran's VA treatment reports and SSA records note his lumbar spine pain, but they don't show this disability warrants an evaluation in excess of 20 percent for the period prior to December 28, 2010. In a letter dated April 18, 2016,VA asked the Veteran to provide information regarding treatment for his lumbar spine disability after August 2014. The Veteran didn't respond to the request. The Board concludes that the Veteran was properly notified of the scheduled additional development. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The claim will be adjudicated based on the evidence of record. Here, based on a review of the most probative evidence, entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine prior to December 28, 2010 is not warranted. The RO granted service connection for the lumbar spine and assigned a 20 percent rating effective January 21, 2001. An evaluation of 20 percent is granted for forward flexion of the thoracolumbar spine 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. The October 2006 VA examination found that his forward flexion was to 10 degrees with pain, extension was to 3 degrees with pain, bilateral lateral bending was to 10 degrees with pain, and bilateral rotation was to 10 degrees with pain. The statement from the October 2006 VA examiner also shows that the Veteran did not give his best effort during the examination and was able to flex to 60 degrees without difficulty prior to the back examination. In addition, the treatment reports reviewed do not support a higher evaluation. The Veteran's disability most closely approximates a 20 percent rating. A higher evaluation of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - which is not shown by objective medical evidence. The most probative evidence of record fails to support evaluations greater than those currently assigned. In addition, throughout several VA examinations, the Veteran repeatedly did not put in the maximum effort to his VA examinations offered to support his contention that he is entitled to a higher rating than that currently assigned. Second, regarding the period from December 28, 2010 to the present, the Board must use the information contained in the December 28, 2010 VA treatment note to evaluate the severity of the Veteran's disability. This is because the Veteran did not cooperate at the subsequent April 2012 VA examination. Based on those findings, the Veteran's disability is most closely approximated by a 40 percent evaluation based upon forward flexion of 30 degrees and extension of 0 degrees, with normal left and right lateral flexion. An effective date of December 28, 2010 was assigned, the date the evidence first shows that the Veteran met the 40 percent evaluation criteria. A higher evaluation of 50 percent is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine. In addition, the VA treatment reports reviewed do not support a higher evaluation. There is no probative evidence to the contrary. Consequently, a rating in excess of 40 percent for the period after December 28, 2010 for lumbar spine degenerative joint disease is not warranted. The United States Court of Appeals for Veterans Claims (Court) has held that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In this case, the Board finds the VA examinations adequate for rating purposes under Correia. Of note, as noted in the examination report, the Veteran still had motion of the thoracolumbar spine. In other words, since a higher schedular rating is not available absent ankylosis, any shortcomings in the examination involving the conditions of the measurements of range of motion are not prejudicial to the Veteran. As previously noted, a 50 percent disability rating is warranted if there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic code 5242. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). VA examinations and treatment records indicated that the Veteran's lumbar spine had motion in every direction, thereby precluding a finding of ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5), indicating that, for VA compensation purposes, unfavorable ankylosis is a disorder in which the entire thoracolumbar spine is fixed in flexion or extension. The Veteran's range of motion is certainly limited; however, at no time was ankylosis of the spine demonstrated. As such, a disability rating of 50 percent is not warranted under Diagnostic Code 5242. This is the highest rating for an applicable diagnostic code given the evidence of record, and all others have been considered. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In addition, throughout the appeal period, range of motion testing revealed, at worst, muscle spasm severe enough to result in increased ratings for either period. Consequently, a rating of 20 percent from January 1, 2001 to December 28, 2010, and 40 percent from December 28, 2010 to the present is warranted. IV. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, in circumstances where the scheduler rating is less than total, 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 with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). In a related provision, 38 C.F.R. § 4.16 (b) allows for a Veteran who does not meet the threshold requirements for the assignment of a total rating based on individual unemployability, but who is otherwise deemed by the Director of Compensation & Pension Services to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities, to be rated totally disabled. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In its August 2012 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) found that a TDIU claim was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. at 447 (to the effect that a TDIU claim is part of an increased rating claim when such claim is raised by the record). See also Comer v. Peake, 552 F. 3d 1362, 1367 (Fed. Cir 2009) (holding that a request for a TDIU "is implicitly raised whenever...a veteran who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"); Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir 2009) (holding that the Board is obligated to consider arguments or issues raised by the record). The Court found that the October 2008 VA examination report was "at least evidence that [the Veteran's] service-connected mental conditions have had negative effects on his employment." The Court affirmed the remainder of the Board's decision. In the present case, service connection has been granted for an acquired psychiatric condition to include major depressive disorder/post-traumatic stress disorder, degenerative joint disease of the lumbar spine, diabetes mellitus, hypertension, residuals of right foot fracture, tinnitus, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, pseudofolliculitis barbae, peripheral neuropathy of the right upper extremity, and peripheral neuropathy of the left upper extremity. His combined rating is 60 percent from October 24, 2006 and 100 percent from October 4, 2010. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. The RO assigned an evaluation of 100 percent is assigned from October 4, 2010, the date the Veteran originally claimed service connection for an acquired psychiatric disability. The Rating Decision from May 31, 2012 denied his claim for service connection for posttraumatic stress disorder (PTSD) as there was no clinical diagnosis of this condition. The rating decision also proposed that the Veteran was incompetent. In October 2012, the RO granted service connection for major depressive disorder and posttraumatic stress disorder (PTSD); assigned a 100 percent schedular evaluation for that disability; effectuated the award as of October 4, 2010; and proposed that the Veteran be found to be incompetent to handle his VA benefits. In March 2013, the Veteran was found to be incompetent to handle his VA benefits. In May 2013, the Appellant was recognized by VA as the Veteran's legal custodian. In March 2016, the Board found the issue of entitlement to a TDIU for the period prior to October 4, 2010, is raised by the record, and remanded for additional development. An October 2017 rating decision found the Veteran to be competent. VA underwent appropriate development to specifically determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. His VA treatment reports and SSA records noting his lumbar spine pain and other disabilities have been considered. An October 2006 VA diabetes examination found that the Veteran exercises by walking, which he does primarily on the job. He reported that he walks at least a couple of miles per day on the job. He has no activity restrictions secondary to diabetes. He reported that his weight had been stable. A May 2006 primary care note indicates that the Veteran currently works at the Metropolitan Psychiatric Center as security guard. He has chronic low back pain related to prolonged driving of Humvees. He came to the clinic with his girlfriend. A VA treatment record from October 2006 indicates the Veteran may take just Tylenol for back pain during the day so he can have some pain relief at work while not experiencing drowsiness. A subsequent October 2006 VA treatment record indicates that the Veteran worked as a security guard at Metropolitan Psychiatric hospital, state hospital, adults. He had worked there for three years. At a September 2008 VA examination, the Veteran's overall health status appeared "good." An October 2010 VA examination found that the Veteran works as a security guard for Metropolitan Psychiatric Center. His work involved at least 3-4 hours of walking and standing. On questioning that day, the Veteran reported that he can walk for one block and he can stand for 30 minutes. A VA treatment record from November 2010 indicates that the Veteran "Was at work at the time of his scheduled appointment and forgot about it." This shows he was employed at that time. A December 2011 SSA function report indicates the Veteran is able to leave the house approximately four times per day. He cannot stand for long periods of time. He likes guns and fishing. He cleans his guns and goes to the river. A December 2011 third party adult function report indicates that the Veteran had been going to work. He was awarded disability benefits effective April 2012. In conjunction with his current claim for entitlement to a TDIU, the Veteran was afforded a new VA examination in April 2012 to evaluate the current severity of his lumbar spine condition. The Veteran remained sitting there looking down and not speaking. The physician asked if he would like to reschedule for another time, and that the physician would communicate that to the Regional Office. The Veteran said, "F- the Regional Office." The Veteran indicated they should proceed. When the physician asked simple questions, such as the approximate date of onset of his diabetes, hypertension, etc., the Veteran said "all that f-ing information is in my f-ing records." He asked if the examiner was a Veteran. When the VA examiner indicated that the examiner was not, he asked "why the f- am I even talking to you?" The meeting adjourned at that point. Consequently, this VA examination report can't be used due to the Veteran being uncooperative, and the Veteran's claim must be evaluated based upon the other evidence of record. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The Veteran testified in September 2012 regarding his back pain and psychiatric disorders. The Veteran provided a vocational history as part of a September 2013 treatment record the England Company Rehabilitation Services. The Veteran worked for Metropolitan St. Louis Psychiatric Center, a Missouri Department of Mental Health Facility, as a security officer, from around July of 2004 through November of 2011. He was providing general building security and was on his feet a good part of the workday other than when sitting to observe monitors. His job was normally light, but could be heavy when he had to suddenly restrain someone. He normally worked 40 hours a week although he did miss some work before the primary injury because of health problems. In a letter dated April 18, 2016, VA asked the Veteran to provide information regarding treatment for his lumbar spine disability after August 2014. This was partially in order to assist with developing his TDIU claim. The Veteran did not respond to this request. Consequently, his claim will be evaluated based upon the evidence of record. Here, the weight of the credible and probative evidence does not suggest that the Veteran's mobility, dexterity, or hearing acuity were of sufficient severity as to prevent leaving the home, walking, or interacting with others necessary to pursue his security guard or other similar profession. In fact, the most probative evidence suggests that the Veteran maintained substantial physical abilities to walk around, and maintained that job for several years. Although the increased rating for mental health and the increased combined rating recognize a significant level of disability, the Veteran's education and skilled experience demonstrate the capacity for substantially gainful work. The Board additionally finds that the evidence currently of record does not separately raise the issue anew of whether the Veteran is unable to secure or maintain substantially gainful employment for any other time period. Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching these conclusions, the Board finds that the preponderance of the evidence is against these claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the claim for service connection for bilateral hearing loss is not reopened. The appeal is denied. An increased rating in excess of 20 percent for the Veteran's lumbar spine degenerative joint disease for the period prior to December 28, 2010 is denied. An increased rating in excess of 40 percent for the Veteran's lumbar spine degenerative joint disease for the period from December 28, 2010 to the present is denied. Entitlement to total disability rating based on individual unemployability from prior to October 4, 2010 is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs