Citation Nr: 1759921 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 08-20 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable rating prior to May 31, 2005, and a rating in excess of 20 percent thereafter for thoracic strain with arthritis and spondylolisthesis. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) due to a thoracic strain, pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009). REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active duty in the United States Army from July 1973 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which in relevant part, granted service connection for a thoracic strain and assigned a non-compensable rating effective June 30, 2004. The Veteran submitted a notice of disagreement in January 2005. Subsequently, a January 2006 rating decision increased the evaluation of the thoracic strain to 10 percent effective May 31, 2005. A statement of the case (SOC) was issued in June 2008. The Veteran perfected a timely substantive appeal via a VA Form 9 in July 2008. A February 2010 rating decision increased the evaluation to 20 percent effective May 31, 2005. Supplemental SOCs were issued in February 2010, June 2013, and June 2015. In July 2017, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. A September 2017 supplemental SOC continued a 20 percent evaluation of the thoracic strain. The Veteran was afforded a personal hearing before a Hearing Officer at the RO in July 2007. The Veteran also testified at a Board hearing before the undersigned Veterans Law Judge in March 2017. A transcript of each hearing is of record. The Board notes that jurisdiction for the claim of entitlement to a TDIU is established under Rice v. Shinseki, 22 Vet. App. 447 (2009), which found that where a claimant or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Thus, the Board has expanded the present appeal to include a derivative claim for a TDIU as a component of the request for an increase of the thoracic strain evaluation. In the present case, the Veteran filed a separate claim seeking a TDIU due to multiple service-connected disabilities, including the thoracic strain, in August 2017. See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The application seeking a TDIU due to multiple service-connected disabilities is not currently in appellate status and is referred to the RO for appropriate action in accordance with the laws governing the filing of claims. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. FINDINGS OF FACT 1. The Veteran's thoracic strain with arthritis and spondylolisthesis manifested in painful movement and limitation of flexion to 60 degrees during the period on appeal. 2. The thoracic strain disability does not preclude the Veteran from light physical or sedentary work. CONCLUSIONS OF LAW 1. From June 30, 2004, the criteria for a 20 percent rating, but no higher, for a thoracic strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for a TDIU due to service-connected thoracic strain are not met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board notes that the Veteran's disagreement is with the initial rating assigned following the grant of service connection for a thoracic strain. VA's General Counsel held that no further VCAA notice is required for downstream issues such as a veteran's appeal with respect to the propriety of the initially assigned rating stemming from the original grant of service connection. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman, 19 Vet. App. 473 (2006). As the Veteran in this case has appealed with respect to the initially assigned rating, additional VCAA notice is not required because the purpose the notice is intended to serve has been fulfilled. Harman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of the service treatment records, private treatment records, VA treatment records, Social Security Administration records, and the Veteran's statements. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records. The Board recognizes that the August 2017 VA examiner did not measure the range of motion of the Veteran's back in both active and passive motion. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). However, the examiner explicitly measured the functional loss due to pain. Additionally, the active range of motion, which was reported, is intrinsically worse or more limited/difficult than any passive or non-weight bearing testing and, thus, any failure to report those findings is harmless. Therefore, the Board finds that the August 2017 VA examination is sufficient, especially in light of the fact that the Veteran did not raise any argument regarding the impact of the deficiencies in testing as noted in Correia. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33, 196 L. Ed. 2d 25 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the exhaustion doctrine to uphold the Court's determination not to consider a duty to assist argument that the veteran had not raised before the Board). Accordingly, the Board finds there has been substantial compliance with the July 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Thus, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 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. Increased Rating The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). General rating principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. For an initial rating claim, consideration will be given to "staged ratings" since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating shall be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different Diagnostic Codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Factual Background VA treatment records from 2004 noted complaints of low back pain from a motor vehicle accident in July 2004. Imaging completed in May 2005 found minimal wedging of two mid-thoracic vertebrae. VA treatment records from November 2005 documented the Veteran's report of lower back pain. No limp was noted and all muscles appeared with normal strength, bulk, and tone. The Veteran underwent VA examination in November 2005. The Veteran reported weekly flare-ups and stated everything caused his back to hurt. He walked with a cane for balance and pain in his hip. No medication use was reported. The examiner observed the Veteran's gait to find that he did not provide a cooperative effort for the examination. With prompting, his stance phase, swing phase, cadence, trunk, pelvis, position, and base were all adequate, stable, and within normal limits. Thorax flexion was measure to 60 degrees and extension to 20 degrees. Lateral flexion was measured to 20 degrees and rotation to 30 degrees bilaterally. Repetition did not reveal additional limitations. The examiner diagnosed a mostly normal low back without obvious lower extremity neurogenic radiculopathies. Muscle strain was not appreciated during the examination. In a June 2006 statement, the Veteran disagreed with the non-compensable rating assigned to his thoracic strain. He described weakness, use of pain medications, and problems walking due to constant back pain. He stated that he experienced a very limited range of motion and could not lift items from the ground. He further stated that his back went out several times a week and the pain interfered with his ability to sleep. The Veteran underwent further VA examination in April 2008. He reported on-going treatment which involved careful activity, oral medication, a cane and some special exercising. The examiner documented the Veteran's report of prolonged bedrest a day or two with back flare-ups about once a month. The Veteran's comfort level allowed for sitting for about 30 minutes, limited by pain in the low back and the right hip; he did not drive. He reported frequent cane use when walking. Pain at the upper and middle back was described as moderate while low back pain was severe. Back motion allowed for flexion of 85 degrees, extension of 15 degrees, rotation of 20 degrees on each side, and lateral bending of 25 degrees on each side. The examiner noted moderate pain over full motion with a mild muscle spasm. Alignment of the spine was quite good but there was increased thoracic round back posture from T5 to T7. The examiner considered the subjective symptoms and flare-ups described by the Veteran and estimated that decreased flexion of the back by 35 degrees accounted for the various symptoms. He noted that the Veteran's work capacity was reduced by chronic mental and back problems. In his June 2008 VA Form 9, the Veteran stated that his back injury affected his capabilities to lift, walk, work, stand and sit for any length of time. He requested an evaluation of 50-70 percent. In mid-2008, the Veteran was involved in a motor vehicle accident. Subsequent treatment records reflect complaints primarily of cervical spine pain (rather than thoracic spine issues). November 2009 VA treatment records contain a review of a June 2008 MRI, which noted minimal end plate fractures at T2 and T3. Another VA examination was conducted in January 2010. The examiner reviewed an April 2008 report mentioning films of the thoracic spine, which showed multiple, old, minimal, compression fractures of mid dorsal spine, T5-7 with less than 30 percent loss of vertebral body height with old, healed, granulomatous disease. In regard to the thoracic sprain, the Veteran reported pain on a regular basis rated a 10/10 with weakness, stiffness, swelling, burning and heat, redness, instability, locking, fatigue, and lack of endurance with pain that radiates up and down and to the hands. He was being seen by the Pain Clinic, undergoing chiropractic therapy, physical therapy, massage, acupuncture, and using a TENS unit. The examiner found tenderness to palpation throughout the spine. Range of motion was measured as flexion to 43 degrees, hyperextension to 7 degrees, lateral flexion to the right to 11 degrees and the left to 17 degrees, rotation to the right to 22 degrees and left to 28 degrees. There was pain throughout range of motion. No additional loss of range of motion with repetitive use was found. A March 2010 VA treatment note documented the Veteran's report of trouble walking due to back pain. In April 2010, he reported back pain measuring as 6/10. The Veteran underwent further VA examination in June 2013. He stated that he always had a problem with his middle back which was made worse by a motor vehicle accident in 2008 and has worsened in the past 10 years. He reported receiving injections in the cervical joints for the pain; however, he stated that he has never had cortisone injections in the mid- back. He reported use of a TENS unit and massage chair at home. He alleged numbness in his forearms and elbows related to his mid-back condition. Forward flexion was measured to 75 degrees with pain beginning at 60 degrees; extension was measured to 20 degrees with pain beginning at 5 degrees; lateral flexion was measured to 20 degrees bilaterally with no objective evidence of painful movement; lateral rotation was measured to 25 degrees bilaterally with no objective evidence of painful movement. After three repetitions, forward flexion was measured to 80 degrees; all other measurements remained the same. The examiner reported functional loss after repetitions due to less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing and/or weight-bearing. No localized tenderness, guarding, or muscle spasms were noted. Regular use of a cane and walker was reported. An addendum opinion was obtained in January 2015. The examiner found that the thoracic strain was not connected to the bilateral elbow or bilateral ulnar nerve lesions. The examiner explained that the thoracic spinal nerves do not supply the structures in the arms except for T1 and T2 and there was no clinical evidence of cord compression at these sites. Private treatment records from May 2016 include x-ray findings of anterior wedging at several levels in the mid thoracic spine with no other acute conditions present. In July 2016, the Veteran denied numbness, tingling, burning or weakness related to the thoracic spine. His private doctor referred him to a chiropractor and provided muscle relaxants and over the counter pain relievers. In September 2016, the doctor noted the Veteran's report of improvement in the back following chiropractic treatment for the last six weeks. In March 2017, the Veteran testified at a Board hearing regarding his thoracic condition. He described symptoms including constant pain at a level of 7/10 with limited functions and mobility. Most recently, the Veteran underwent VA examination in August 2017. Forward flexion of the thoracic spine was measured in active motion to 65 degrees, with extension at 15 degrees, and left and right lateral flexion and rotation at 20 degrees each. The August 2017 examiner noted that these measurements were abnormal and caused by pain which limited the Veteran's ability to bend his back. Pain on passive range of motion testing was also noted. The examiner found no evidence of pain when the back was used in non-weight bearing motion. Limitation of functional ability due to repeated use and flare-ups was described in terms of range of motion; the findings indicated no additional loss beyond the initial measurements. No guarding, muscle spasms, atrophy, or ankylosis was indicated. Normal muscle strength and reflexes were present. The Veteran reported regular use of a brace, cane, and walker. The resulting diagnosis from the examination was mid-thoracic strain with wedging of T5-7, with lumbosacral strain, degenerative arthritis of the spine, and spondylolisthesis. Increased rating for thoracic strain with arthritis and spondylolisthesis Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Pain must affect some aspect of the normal working movements of the body such as 'excursion, strength, speed, coordination, and endurance, in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). As will be further explained below, the Board has considered the Veteran's complaints, and was cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 in assigning the rating herein. The Veteran's disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. This diagnostic code directs that the disability be rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula assigns a 10 percent evaluation for forward flexion greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion greater than 30 degrees but not greater than 60 degrees; or, combined range of motion not greater than 120 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. An evaluation higher of 40 percent is warranted when there is forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. These criteria are controlling regardless of whether there are 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 Veteran's thoracic strain is presently evaluated as non-compensable prior to May 31, 2005 and 20 percent disabling thereafter. As an initial matter, the Board finds that a 20 percent rating, but no higher, is warranted as of June 30, 2004 and continuing throughout the period on appeal. Treatment records from 2004 reflect the Veteran's complaints of back pain. The first VA examination during the relevant period was conducted in November 2005, at which time the Veteran described weekly flare-ups and use of a cane and a walker. The examiner diagnosed a mostly normal back and measured flexion of the thoracic spine to 60 degrees. Therefore, affording the Veteran the benefit of the doubt, the current 20 percent rating is deemed effective on June 30, 2004, the date of the claim. However, after thorough review of the evidence of record and consideration of both lay and medical evidence, the Board finds no grounds for assignment of a rating in excess of 20 percent. In order to receive an increased evaluation, forward flexion must be demonstrated to 30 degrees or less, or there must be favorable ankylosis (for a 40 percent rating) or unfavorable ankylosis (for a 50 percent rating). As documented in the August 2017 VA examination, the Veteran's forward flexion was measured in active motion to 65 degrees, with extension at 15 degrees, and left and right lateral flexion and rotation at 20 degrees each. The August 2017 examiner noted that these measurements were abnormal and caused by pain which limited the Veteran's ability to bend his back. Pain on passive range of motion testing was also noted. The examiner found no evidence of pain when the back was used in non-weight bearing motion. Limitation of functional ability due to repeated use and flare-ups was described in terms of range of motion; the findings indicated no additional loss beyond the initial measurements. No guarding, muscle spasms, atrophy, or ankylosis was indicated. Normal muscle strength and reflexes were present. The Veteran reported regular use of a brace, cane, and walker. The resulting diagnosis from the examination was mid-thoracic strain with wedging of T5-7, with lumbosacral strain, degenerative arthritis of the spine, and spondylolisthesis. Prior examinations contain no evidence of ankylosis. Likewise, there is no evidence of flexion to 30 degrees or less. At worst, forward flexion was measured at 43 degrees during the April 2010 VA examination. Other examination reports have generally documented forward flexion between 60-85 degrees. The Board acknowledges the Veteran's competent lay reports of his symptoms, to include pain, trouble with prolonged standing, walking and sitting and transient flare-ups resulting in reduced functionality of his thoracic spine. Thus, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the currently assigned 20 percent rating, but no higher, is appropriate for painful motion of the thoracic spine under Diagnostic Code 5237 and 38 C.F.R. § 4.59 based on limitation of motion. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. 202. The Veteran's thoracic spine pain and resulting functional difficulties are compensated by the 20 percent rating assigned for arthritis with painful motion. Functional impairment associated with painful motion includes limited walking, standing, squatting, kneeling and sitting; difficulty with stairs; stiffness; and lack of endurance. While acknowledging that the Veteran's pain may at times result in functional loss beyond that objectively demonstrated by the medical evidence, and even when such functional limitations are considered, the preponderance of the evidence is against entitlement to evaluation in excess of 20 percent. In this regard, given the objective findings of limitation of flexion to, at worst, 43 degrees with pain, the preponderance of the evidence is against a finding that the Veteran's thoracic spine condition results in disability comparable to limitation of flexion to 30 degrees (the criterion for a 40 percent evaluation under Diagnostic Code 5237), even considering pain and other functional limitations. While not disputing the effects of the thoracic spine disability as described by the Veteran, the Board finds that the preponderance of the evidence reflects a severity compensated by a 20 percent evaluation for limitation of motion. The Board notes that the Veteran is separately rated for a lumbar spine condition as well as the bilateral lower extremity radiculopathy, each individually evaluated as 20 percent disabling. Furthermore, pinched nerves in the bilateral upper extremities were claimed separately and denied in a March 2015; the Veteran has not appealed that decision in regard to the upper extremity claims. In light of that unappealed decision and a January 2015 medical opinion which found the thoracic strain was not connected to the bilateral elbow or bilateral ulnar nerve lesions, the Board finds that consideration of separate evaluations for these symptoms is not warranted herein. Accordingly, after thorough review of the record, the Board finds that a rating in excess of 20 percent for the thoracic spine disability is not warranted. The evidence of record does not support a finding that the Veteran has forward flexion of 30 degrees or less, or ankylosis of the thoracolumbar spine, as required for the next higher rating. Indeed, as noted in the September 2017 supplemental SOC, the August 2017 VA examination findings support no more than a 10 percent evaluation. However, after application of 38 C.F.R. § 4.40, 4.45, and 4.59 and affording the Veteran the benefit of the doubt, a 20 percent rating is assigned for the entire period on appeal. Other considerations In reaching the above conclusion, the Board also has considered whether the Veteran is entitled to an increased level of compensation for his thoracic spine disability on an extraschedular basis. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether a veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, a veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second inquiry, that is whether a veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the Board has carefully compared the level of severity and symptomatology of the Veteran's conditions with the established criteria found in the Rating Schedule and found that the Veteran's symptoms associated with his thoracic spine strain with arthritis and spondylolisthesis (including pain, weakness, numbness, and difficulty lifting, sitting and standing) are fully addressed and contemplated by the schedular rating assigned for this disability under applicable regulations. Indeed, as noted above, the cardinal signs and symptoms of joint disabilities are less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. As noted above, the Veteran is in receipt of separate ratings for radiculopathy of his lower extremities as well as his lumbar spine. The Board acknowledges that the Veteran report use of a cane to alleviate his symptoms. Although this usage is not contemplated under the rating criteria, the symptoms corrected or alleviated by the use of the cane are addressed. The treatment records and VA examination reports describe the level of his disability when he is not using a cane and, as noted above, those symptoms are contemplated by schedular rating assigned pursuant to applicable regulations. As such, the Board concludes that referral for extraschedular consideration is not warranted. There are no additional symptoms that are not addressed by the Rating Schedule or that have not been considered by the Board in assigning the appropriate rating. See DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. Accordingly, the evidence does not show that the requisite factors under Thun are present, and referral of the claim for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted in this case. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Total Disability due to Individual Unemployability (TDIU) A TDIU claim was inferred as a part of the Veteran's current appeal of a higher rating for a thoracic spine disability. See Rice, 22 Vet. at 447, 454. As such, a Rice TDIU claim is limited to whether the Veteran is unemployable due to the underlying service-connected disability on appeal, which, in this case, is the thoracic spine. See id., at 454-455 (holding that when a request for TDIU is raised during the administrative appeal of the initial rating assigned for the underlying disability, it is not a separate claim for benefits, but rather is part of the adjudication of the claim for increased compensation for that underlying disability). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one 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). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service connected disabilities, then the case is to be referred to the Director of Compensation Service for extraschedular consideration. The question therefore becomes whether or not the veteran is unable to secure or follow a substantially gainful occupation solely due to service connected disabilities. 38 C.F.R. § 4.16(b). In the present case, the Veteran has not met the schedular criteria for a TDIU as outlined above at any time during the period on appeal. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence otherwise warrants referral to the appropriate VA officials for entitlement to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. §4.16(b). Turning to the evidence of record, the Veteran submitted a June 2006 statement in which he described the effects of his back disability, including loss of strength, use of multiple medications, problems walking, limited range of motion, and inability to lift items from the ground. He stated that his back went out several times per week and that he received SSA benefits partially due to his back. Upon VA examination in May 2008, the examiner noted that the Veteran's work capacity was reduced by chronic mental and back problems. In a June 2008 statement, the Veteran stated that his back injury affected his capability to lift, walk, work, stand, and sit for any length of time. Upon further VA examination in February 2010, the examiner stated that the Veteran's back condition affected his ability to work based upon his reported inability to sit, stand, or walk for any length of time. At the hearing before the Board in March 2017, the Veteran described symptoms related to his thoracic strain including constant pain and limited function in the terms of activities and mobility. Following physical examination of the Veteran in August 2017, the VA examiner opined that the Veteran was limited to minimal physical work, but capable of working office jobs where he could stay seated. In June 2013, the Veteran submitted a VA 21-8940, Application for Increased Compensation Based on Unemployability. The disabilities listed as the basis for the claim included his back, neck, hearing loss, and PTSD. In his second VA 21-8940 submitted in August 2017, the disabilities contributing to unemployment included his low back, middle back, neck, and legs. The Board notes that while the Veteran has alleged throughout the claims process that he was in receipt of disability benefits from the Social Security Administration (SSA) due in part on his back, the records obtained indicate that psychological problems were the basis for the administration of disability benefits from the SSA. The Veteran was employed for many years after service until experiencing a traumatic event involving a gunshot wound, which had significant psychological and physical impact. He has not worked since the time of that traumatic experience. After thorough consideration of the above, including the lay testimony of record, the Board finds that the evidence does not persuasively show that the Veteran has significant impairment in his overall functional abilities due to his service-connected thoracic spine disability so as to preclude his ability to obtain or retain substantially gainful employment. While the February 2010 examiner noted that the thoracic strain affected the Veteran's ability to work, this appears to have been based upon subjective reports of limited mobility. Additionally, the examiner did not opine on the level of impairment. Most recently, the August 2017 examiner found the Veteran to be capable of at least sedentary work. The Board acknowledges the Veteran's assertions that he is unemployable due to his back disability. He is competent to describe the symptoms he has experienced. However, the record does not indicate, and the Veteran has not asserted, that he has any specific medical expertise or experience which would enable him to offer an expert medical opinion regarding the type and degree of the occupational impairment associated with his disability. The competent medical evidence pertinent to the criteria governing the award of a TDIU is the most probative evidence with regard to evaluating the functional impact of his service-connected disability on his employability. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, it relies upon the unbiased, competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disability on his employability. The Board finds that the Veteran was not precluded from securing or maintaining substantially gainful employment during the period on appeal due to his thoracic strain. While cognizant of the impairment from his service-connected disability, these limitations are recognized by his 20 percent disability rating during the relevant period. The evidence of record does not persuasively show that the Veteran's service-connected disability precluded a substantially gainfully occupation. In reaching this determination, consideration was not given to his advancing age or nonservice-connected conditions. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unemployable during the relevant period due to his service-connected thoracic spine disability. The fact that he was unemployed or had difficulty obtaining employment is not enough to warrant entitlement to a TDIU. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. In the present case, the evidence does not show that he is incapable of performing the physical and mental acts required for gainful employment due solely to his service-connected thoracic spine disability. Therefore, referral of the claim to the Director of Compensation Service for extraschedular consideration is not warranted for the period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to a rating of 20 percent, but no higher, effective June 30, 2004, for thoracic strain with arthritis and spondylolisthesis is granted. Entitlement to a TDIU due to the service-connected thoracic strain with arthritis and spondylolisthesis is denied. ____________________________________________ DEBORAH SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs