Citation Nr: 1726725 Decision Date: 07/12/17 Archive Date: 07/20/17 DOCKET NO. 01-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial, extra-schedular rating in excess of 40 percent for lumbar disc disease, pursuant to 38 C.F.R. § 3.321(b). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL Appellant and C.B., M.D. ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from May to November 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2001 rating decision in which the RO, inter alia, granted service connection and assigned an initial schedular 20 percent rating for lumbar disc bulge with degenerative joint disease, effective November 21, 2000. In July 2001, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2001, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2001. By rating action of May 2002, the RO granted an initial, 40 percent schedular rating for lumbar disc disease with radicular symptoms, effective November 21, 2000; the matter of an initial rating in excess of 40 percent remained for appellate consideration. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2002, the undersigned granted the Veteran's motion to advance this appeal on the Board's docket. See 8 U.S.C.A. § 7107 (a)(2)(C) (West 2014) and 38 C.F.R. § 20.900 (c) (2016). In February and March 2003, the Board requested additional development of the claim on appeal. See 38 C.F.R. § 19.9 (2016). In June 2003, the Board remanded the matter to the RO for completion of the actions requested. At that time, it was noted that the provisions of 38 C.F.R. § 19.9, essentially conferring upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, had been held to be invalid. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir. 2003). After taking further action, the RO continued to deny the claim (as reflected in a July 2003 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In October 2003, the Board denied an initial rating in excess of 40 percent for lumbar disc disease. The Veteran appealed the October 2003 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2004, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In July 2004, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. After taking further action, the RO continued to deny the claim (as reflected in an August 2004 SSOC) and returned the matter on appeal to the Board for further consideration. In October 2004, the Board denied an initial, schedular rating in excess of 40 percent for lumbar disc disease, and remanded to the RO, via the AMC, the matter of an initial, extra-schedular rating in excess of 40 percent for the disability for further action, to include initial adjudication by the RO. After completing the requested action, the RO denied the claim (as reflected in a January 2005 SSOC), and returned this matter to the Board for appellate consideration. This appeal also arose from a December 2003 rating decision in which the RO denied a TDIU. In January 2004, the Veteran filed an NOD. An SOC was issued in November 2004, and the Veteran filed a substantive appeal in December 2004. In January 2006, the Veteran and a physician, C. Bash, M.D., testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) in Washington, D.C. A transcript of that hearing is of record. In April 2006, the Board denied an initial extra-schedular rating in excess of 40 percent for lumbar disc disease, as well as denied a TDIU. The Veteran appealed the April 2006 Board decision to the Court. In April 2007, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claims to the Board for further proceedings consistent with the joint motion. In November 2007, the Board remanded both claims remaining on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claims (as reflected in a February 2010 SSOC) and returned these matters to the Board for further appellate consideration. In May 2010, the Veteran's attorney requested a 60-day abeyance period for the submission of additional evidence and argument in support of the claims. In July 2010, the undersigned granted that request. In February and December 2011, the Board remanded both claims remaining on appeal to the RO, via the AMC, for further action, to include additional development of the evidence (including referral of the extraschedular claims to VA's Compensation Director (Director) for extra-schedular consideration, pursuant to 38 C.F.R. §§ 3.321(b) and 4.16(b)). After completing the requested development, the RO continued to deny the claims (as reflected in July 2011 and August 2015 SSOCs) and returned these matters to the Board for further appellate consideration. The undersigned VLJ subsequently granted several extensions of time for the Veteran to submit additional evidence. In April 2017, the Veteran's attorney submitted additional evidence to the Board. The Veteran, through his attorney, waived initial consideration of the evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2016). As a final preliminary matter, the Board points out that the Veteran's attorney requested a second Board hearing before a VLJ in an April 2016 statement. This hearing request was withdrawn in February 2017 (see a February 2017 letter from the Veteran's attorney). Although the Veteran previously had a paper claims file, this appeal is now fully being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran has been awarded service connection for disc disease of the lumbar spine with disc bulge L4-5 and radicular symptoms (rated as 40 percent disabling). 3. The competent, probative lay and medical evidence on the question of whether the Veteran's service-connected back disability is sufficient to preclude substantially gainful employment consistent with her education and occupational experience is, at least, in relative equipoise. 4. During the January 2006 Board hearing, the Veteran testified that an award of a TDIU would satisfy her appeal. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU due to service-connected disability, on an extra-schedular basis, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). 2. The criteria for withdrawal of the appeal with respect to the claim for an initial, extra-schedular rating in excess of 40 percent for lumbar disc disease, pursuant to 38 C.F.R. § 3.321(b), are met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2016). Given the fully favorable disposition of the claim for a TDIU, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished. II. Analysis A. TDIU Where the schedular rating is less than total, total disability ratings for compensation based upon individual unemployability may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). However, even when the percentage requirements are not met, a TDIU on an extra-schedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is first referred to the Director for consideration of an extra-schedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). In this case, the Veteran's sole service-connected back disability is rated as 40 percent disabling, pursuant to VA's rating schedule. Hence, she clearly does not meet the minimum percentage requirements set forth in 38 C.F.R. § 4.16 (a). As discussed below, the Veteran's extra-schedular TDIU claim has been referred to the Director, the claim has been considered by the Director, and the claim is now back before the Board. The Board points out that although it is required to obtain the Director's decision before awarding extra-schedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C.A. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). Thus, as the issue of entitlement to an extra-schedular TDIU pursuant to 38 C.F.R. § 4.16 (b) has been remanded and referred to the Director and the Director has issued a decision, the issue is now before the Board and must be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal"). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of her service-connected disabilities, from securing and following "substantially gainful employment" consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 education, special training, and previous work experience, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Veteran's service-connected low back disability has primarily been manifested by complaints of pain, including radiating pain down the left leg, and reduced range of motion; there also is evidence of activity restrictions. She has indicated that her low back bothers her on a daily basis, with increased complaints after prolonged walking, sitting, or standing. Considering these symptoms, and other pertinent evidence in light of the above-noted legal authority, the Board finds that the evidence on the question of whether the Veteran's service-connected back disability is sufficient to preclude substantially gainful employment consistent with her education and occupational experience is, at least, in relative equipoise. The Veteran's service medical records show that she was medically discharged from service in November 2000 due to low back pain of moderate severity. During a December 2000 examination by R. Salzer, M.D., the Veteran complained of back pain. On examination, lumbar lordosis was normal. There was diffuse soreness in the left paraspinous area, and good range of motion of the hips and knees. There was no sensory disturbance. Straight leg raising reproduced some hip and thigh pain. The physician opined that the Veteran had disc herniation, assumed to be a bulge at L4-5 on the left side; another possibility was that a large fibroid uterus could be causing some lumbosacral plexus problems. Also in December 2000, the veteran filed a claim for service connection for low back pain that radiated down the left leg. During a February 2001 VA examination, the Veteran reported that she experienced constant pain in the left low back and that walking 100 yards made the pain worse. She stated that she could sit, stand, or stoop for 15 minutes without getting severe back pain, and that lifting anything over 25 pounds caused severe back pain. On examination, she was clearly in distress and leaned heavily to her right side. Left lateral bending was from 0 to 35 degrees, right lateral bending was from 0 to 45 degrees, extension was from 0 to 35 degrees, and flexion was from 0 to 85 degrees. Deep tendon reflexes were normal at the knees and ankles. Straight leg raising was positive on the left at 60 degrees. Sensation was normal in the lower extremities, with normal distal pulses. Lumbosacral spine X-rays revealed minimal disc space narrowing at L4-5. The impressions were minimal bulge at L4-5, degenerative disc disease, and lumbar disc with no nerve root involvement. An April 2001 VA lumbar magnetic resonance imaging (MRI) revealed minimal disc bulging at L4-5 without compressive sequela, and was noted to be unremarkable. In a May 2001 statement (VA Form 21-4138), the Veteran reported that although she had attempted to obtain gainful employment, she was unable to obtain such employment due to her physical disability because she was unable to find suitable employment which did not require any physical lifting or prolonged standing. The report of an April 2001 informal hearing conference with a Decision Review Officer (DRO) reflects that the Veteran reported that she experienced constant low back pain which radiated down the left lower extremity to her foot and was 9-10/10 in intensity. She was unable to sit for more than 20 minutes without having to get up and move around because of back pain, she was unable to drive for long distances because she had to stop frequently and get out of the car due to back pain, and she had to limit her hours at her job because she was unable to perform the required duties due to back symptoms. She was working with the VA Vocational Rehabilitation Program, but was told that would not be cleared to go to school for vocational training until her back symptoms improved. She was unable to sleep on her left side at night because her entire left lower extremity would become numb. A February 2002 "Request for Medical Services-Chapter 31" form (VA Form 28-8861) indicates that the Veteran had been informed of the "next steps" in approval for Chapter 31 for medical assistance for her back disability, with expected entry into a program of training in January 2002. She had been unable to obtain an appointment and appeared to be in need of assistance prior to being placed in a program where she would be required to sit at a desk for an extended period of time. The Veteran reported during an April 2002 VA examination that she experienced severe pain in the left back and leg. She stated that, following military service, it took her a year to find a job, and that after 2 months, she could only work part-time as a mentor and tutor because she was unable to sit, stand, and walk for prolonged periods. She reported pain primarily in the left mid- and low back that radiated down the left thigh and leg (posterior thigh and calf), with some numbness and tingling, but no weakness in the leg. She also reported that she was not able to lie on her left side, and that she experienced flare-ups two to three times a day, described as sharp burning pain down the back and leg. She indicated that, when this occurred, she had to get out of bed and walk around. She also noted that, when performing an activity, she had to stop what she was doing and lean against a wall until the sharp burning pain subsided. On examination, the Veteran sat sideways in the examination room and had difficulty getting on and off the examination table. Her gait was asymmetric, with almost a swivel component to the hips. Examination of the lumbar and cervical spine revealed normal curvatures. There was tenderness over the lower thoracic and lumbosacral spine, without palpable spasms. Left lateral bending was from 0 to 35 degrees, with pain at the extreme of motion, with no diminution of the range or strength with repetitive testing. Right lateral bending was from 0 to 45 degrees, with pain at the extreme of motion with no diminution with repetitive testing. Extension was from 0 to 30 degrees, with pain at the extreme of motion; this diminished to from 0 to 20 degrees with repetitive testing. Forward flexion was from 0 to 105 degrees, with pain at the extreme range, and this diminished to from 0 to 85 degrees with repetitive testing. Leg lengths were equal, and there was no atrophy in the calves or thighs. Straight leg raising was positive bilaterally on the right at 60 degrees, and on the left at 40 degrees. Left knee motor strength was 5/5 on initial testing on flexion and extension, which diminished to 4+/5 on repetitive testing. Left knee extension was to 0 degrees, but on repetitive testing she was only able to elevate her leg to a loss of 15 degrees. Deep tendon reflexes were 2+ bilaterally at the ankles and knees, and the toes were downgoing bilaterally. There was 5-/5 motor strength throughout all planes in the left lower extremity that did not diminish with repetitive testing. There was decreased sensation in the lateral and posterior left calf and lateral dorsal and plantar surface of the left foot. Distal pulses were 2+, with no pedal edema. Current X-rays of the lumbar spine were unremarkable. After review of the April 2001 VA MRI report and March 2001 VA X-rays, the impression was minimal lumbar degenerative disc disease with radicular symptoms, and the examiner felt that the Veteran's pain and radicular complaints originated from her lumbar spine. An April 2002 VA outpatient record indicates that the Veteran underwent a pain assessment during which she described her pain as 4 on a scale of 0 to 10. She stated that pain was present in the lower back and left leg with radiation, and was constant with movement of the affected part. During a June 2002 VA examination, the Veteran walked with a significant limp and swivel to her hips and she sat uncomfortably in a chair. There was mildly decreased sensation in her left leg, and the examiner noted that the Veteran had mechanical low back strain. The Veteran was employed with a youth organization, where she worked with children from the age of 4 to 13. She had been employed in this position for 8 months and although she had started on a full-time basis, she had to decrease to part-time (approximately 20 hours per week) because of hip and back pain. She had completed 2 years of college. In an October 2002 letter, the Veteran was advised that her vocational rehabilitation program had been discontinued effective that month because of her inability to begin a training program due to medical issues. In an October 2002 statement, the Veteran reported that she experienced constant back pain, had no social life, and was unable to travel any distance without frequent stops. She had attempted to work part-time, but it was painful to stand, sit, or walk for any period of time. A November 2002 VA pain assessment record notes the Veteran's report that her pain was a 5 on a scale of 0 to 10, was located in the abdomen and left leg, and radiated down to the left foot. She reported chronic leg pain for 2 years. A March 2003 VA outpatient record includes a notation that the Veteran's main problem was periodic back pain that she had had since military service. She walked with a limp in the morning and sat with the left leg extended. There was very limited flexion of the lumbar spine, and positive straight leg extension in the left leg, in which she had most of her pain. There was some weakness on extension of the left great toe, and no other changes. The Veteran reported during an April 2003 VA orthopedic examination that she experienced low back pain which waxed and waned in severity, and was most pronounced over the left lower lumbar paravertebral region. She also experienced radiation of pain into the left gluteal region and left leg, with a prominent burning and tingling component. Additionally, the leg felt weak. The pain was most consistently exacerbated with prolonged sitting. She denied similar right leg symptoms, and had not experienced bowel or bladder symptoms. She reported that the pain was sometimes so severe that she went to bed and was unable to perform activities. She stated that she had not been able to work. On examination, there was tenderness to percussion over the lumbar spine. Straight leg raising was mildly positive in the left lower extremity. Motor examination revealed normal right lower extremity function. The Veteran reported increased pain with any effort of the leg, and thus exerted submaximal effort. There was no appreciable muscle wasting. There was a left antalgic gait. Sensory examination was normal to pinprick, vibration, and temperature in both lower extremities. Muscle stretch reflexes were 2+ and symmetric in the lower extremities, including ankle jerks. X-rays of the lumbar spine revealed partial sacralization of L-5 with apparent disc space narrowing at L5-S1; there was no evidence of disc disease and no evidence of current or remote injury. The diagnosis was chronic low back pain and left lower extremity pain consistent with sciatica. There were no objective abnormalities by neurological examination indicative of radiculopathy. MRI of the lumbar spine was normal, and disc bulging as described was considered a normal finding. Pain was noted to be the Veteran's primary problem and limiting factor, which pain was pronounced, with little intermittent relief. The examiner indicated that, by history, incapacitating episodes occurred for more than 6 weeks over the past 12 months. During an April 2003 VA neurological examination, the Veteran complained of pain primarily in the left lower quadrant which frequently rolled down to the left hip and posterior left thigh, with tingling in the thigh during times of pain at that site. She reported radicular symptoms that occurred with lengthy standing, sitting, or walking, and a change of position or activity helped resolve the symptoms. The Veteran stated that she could walk for 10-15 minutes before the pain got bad enough that she had to sit and rest. She reported having tried various miscellaneous medications without any significant benefit. The pain reportedly interfered with her sleep, and was constant; it did not come and go, and did not flare-up except when it worsened with some activities, like running, heavy lifting, or prolonged bending. She reported that she could lift 20 pounds, and did her own housework. She avoided more strenuous activities such as sports. The examiner noted that, despite the reported severity of pain, the Veteran had not sought medical care except for one visit to an orthopedist in late 2000. He also noted that a 2001 MRI report showed slight bulging at L4-5, and that plain lumbar X-rays in April 2002 were unremarkable. On examination, the Veteran displayed a normal gait walking from the waiting room to the examination room, but then displayed difficulty getting in and out of the chair with significant difficulty squatting. Range of motion was limited to 45 degrees on flexion, 0 degrees on extension, and 20 degrees on lateral bending in each direction. Both truncal rotation and axial loading produced complaints of significant low back pain, which were nonphysiologic findings. Any low back motion was accompanied by loud verbal complaints of pain. Deep tendon reflexes were normal and equal at the knees and ankles. The diagnosis was minimal degenerative disc disease with symptoms of radiculopathy. It was the examiner's impression that the Veteran's hip and thigh symptoms were totally due to her low back problem. He also noted objective clinical signs of nonphysiologic responses which lead to some degree of symptom exaggeration. He opined that the symptoms as described and the minimal degree of pathology demonstrated on MRI did not lead to a conclusion of significant disability or incapacitation. Rather, the doctor opined that the Veteran's pain had been incompletely medically treated, and poorly tolerated by her, to the extent that she was unwilling to seek any further medical treatment for it. He stated that the employment that she had subsequent to military service was definitely non-strenuous work, which should have been very tolerable for someone with her degree of pathology. He further opined that the fact that the Veteran quit her job due to her pain was less a demonstration of incapacitation, and much more a demonstration of her pain hypersensitivity. He noted that the range of motion described above was treated repeatedly without any significant evidence of fatigability or weakness, and without any evidence of objectively observable pain on motion; the only indication of pain on motion was the Veteran's loud verbal complaints. The physician provided "normal" range of motion standards of 75 degrees on flexion, 30 degrees on [backward] extension, and 35 degrees on lateral bending in each direction. Lastly, the examiner stated that he believed that all of the Veteran's hip and thigh symptoms were attributable to lumbar radiculopathy. A May 2003 VA MRI revealed a mild left paracentral L3-4 disc bulge that was thought to possibly represent an early disc herniation. Although the disc bulge resulted in mild left neural foraminal stenosis, there was no evidence of nerve impingement. A May 2003 VA pain assessment form includes a notation as to chronic pain in the Veteran's lower back that radiated down her left leg. She described the pain as 4 on a scale of 0 to 10, and noted that it was sharp, aching, throbbing, and continuous. On another evaluation that same month, the Veteran walked with a slight limp and had positive left straight leg raising. The diagnosis was lumbosacral pain. Records from the South Carolina Vocational Rehabilitation Department dated in August 2003 include a psychological report and records related to a chronic pain management program that the Veteran participated in that month. The psychological report contained no diagnostic impression, and with respect to functional limitations, noted that the Veteran might be unable to perform specific job tasks due to physical limitations and an uncertainty regarding future employability. A physical therapy record noted that all flexion exercises increased the Veteran's pain complaints, and that she was limited to walking less than 1/8th mile per day. She was also noted to have a limp with walking when pain was aggravated. In regard to vocational limitations, the therapist noted that the Veteran physically tolerated a full day of activity for the 4-week evaluation period at the sedentary-to-light work level, but had significant time limitations in all positions. He added that the Veteran would need accommodations for no crouching, stooping, climbing, or crawling activities, and changed positions frequently between sitting, standing, and walking. During a November 2003 VA examination, the Veteran complained of worsening back pain that was constant and radiated from the left low back down the posterior left leg to the toes, with weakness, but no numbness, in the leg. She stated that she could not sit for more than 20 minutes, stand or walk for more than 15 minutes, or bend, kneel, squat, or lie on her back or left side. She currently did not work, last having been employed in September 2003 as a tutor, mentor, and school aide for field trips. She stated that she currently could not perform that kind of work because of an inability to walk or sit. She reported no medically-directed periods of incapacitation. On examination, the Veteran sat in very awkward positions, frequently changing positions from sitting with her back partially extended and her left leg straight out, to sitting hunched-forward to her chair. She arose by pushing herself out of her chair using her arms. On examination of the lumbosacral spine, she had knee-buckling pain to extremely-light palpation of the left low back diffusely, with no specific trigger point. There were normal curvatures and no palpable spasms. Lateral bending was from 0 to 15 degrees on the left and 0 to 25 degrees on the right, extension was from 0 to 15 degrees, and flexion was from 0 to 50 degrees, with pain in all 4 ranges of motion. However, when asked to look at something behind her, the Veteran turned quickly around at the waist. There was positive truncal rotation pain and negative axial compression pain. She was able to kneel on a chair only to 40 degrees, despite earlier sitting on a chair upright bent forward to 30 degrees. Straight leg raising was positive while supine at 30 degrees, and negative bilaterally when sitting. There was normal sensation and 5/5 motor strength in the lower extremities and 2+ deep tendon reflexes of the knees and ankles, without evidence of muscle atrophy or fasciculations. The examiner reviewed April 2002 lumbosacral spine X-rays that were unremarkable overall, and April 2001 MRI showing a slight disc bulge at L4-5, which he noted was not considered a significant finding. The examiner's impression was that the Veteran had low back strain with nonsignificant imaging findings, with very significant evidence of symptom magnification, as confirmed by current examination as well as April 2003 VA examination. The doctor opined that the Veteran should be able to find and maintain gainful employment. A June 2004 VA lumbar MRI revealed normal configuration and alignment of the vertebrae. The vertebral discs had preserved height and signal, and there was mild disc bulging at L4-5, without identifiable nerve root compression. VA outpatient records show that injection of medication in July 2004 provided the Veteran temporary relief of back pain. She reported discomfort and difficulty in walking and sitting. When seen again in August, her gait was nearly normal. She was restless sitting in a chair, leaning to keep her weight off of her left buttock and hip. She reported a 25 percent reduction in pain, and she slept well. Her gait was again nearly normal in October, and she exhibited somewhat exaggerated pain behavior. A TENS unit was noted to have been very effective. The Veteran's Social Security Administration (SSA) disability records reflect that following service she was employed at a department store unloading trucks and stocking shelves and as a teacher's aide. She reported that she stopped working as a teacher's aide in September 2002 due to her low back disability because it limited her ability to sit, stand, and walk for long periods of time. She was denied SSA disability benefits on the basis of her claimed back disability. During the January 2006 Board hearing, the Veteran testified that she had completed 2 years of college (she took courses in business management) and that she had been unemployed for 4 years (since September 2002) due to her service-connected back disability. She experienced intense sharp pain on the left side of her lower back and the pain radiated down to the left side of her leg to her foot. She also experienced cramps, swelling, spasms, and temporary numbness. Medication provided some relief, she used a cane but not a wheelchair, and she lived by herself and could take care of herself and shop for herself, but she could not carry heavy items. C.N. Bash, M.D., M.B.A. testified that he had reviewed the Veteran's medical records with respect to her low back disability and examined her briefly. He opined that the Veteran was unemployable because of her service-connected back disability. He explained that most of the Veteran's employment experience required standing, sitting, and squatting, that her back disability limited her ability to perform such activities, and that she could not perform a full administrative job given her education. In a January 2006 written statement, Dr. Bash stated that he reviewed the Veteran's claims file and all medical records contained therein and that he also examined the Veteran. He opined that the Veteran was unemployable (i.e., unable to obtain or maintain employment), and had been unemployable for many years, due to her service-connected back disability. Dr. Bash explained that examination of the Veteran revealed that she had leg post thigh and calf muscle spasm, that she walked with a limp and a cane, and that she experienced back and left leg/foot pain. She had to change position frequently due to pain. There were normal plain x-rays of her spine and hips, but a lumbar spine MRI was repeatedly abnormal. The fact that the x-rays were normal and the MRI was abnormal was a very normal occurrence because the plain film studies are relatively insensitive to disc and other soft tissue abnormalities. Although a recent imaging study indicated that the nerves were not touched by the abnormal L4-5 disc material, this was understandable based on the Veteran's position at the time of the imaging. Patients who are imaged in the prone or supine position may not demonstrate the same pathology as those who are imaged in a vertical, weight-bearing position. In this case, vertical imaging would be the study of choice because vertical imaging would include the weight of the body. Dr. Bash further explained that the Veteran had a standing and lifting labor job which she quit in 2002 due to her spinal problems and that she had been unemployed since that time. Also, she was unable to participate in VA-sponsored vocational training due to her service-connected disability. In a March 2006 statement, C. Gross, a vocational rehabilitation counselor, opined that the Veteran's physical disabilities would prevent her from performing a sustained work day, either part-time or full-time, and that she would be a poor candidate for vocational re-training due to her service-connected disability and the resulting physical limitations. In addition, C. Gross opined that the Veteran would be impossible to place, in that her physical disabilities would prevent her from being competitive or desirable in the workplace. On those bases, she opined that the Veteran did not appear to be employable within the current competitive job market at a substantial, gainful level due to the handicapping effects of her service-connected disability. Her diagnosed impairment and resulting functional limitations (handicaps), combined with feasibility (suitability - availability and appropriateness of employment in the competitive labor market, aptitudes, and educational levels), had resulted in a disability which affected her ability to obtain and maintain suitable gainful employment. Medical records dated from April 2006 to June 2008 document reports of left lower back pain which radiated to the left buttock. As a result of her back symptoms, the Veteran was no longer working, was unable to sleep a full night, and was unable to sit, stand, walk, or drive for longer than 30 minutes. Examinations revealed that the Veteran occasionally walked with a list to the left side, that she sat in a chair leaning to the right with her left leg extended and jerking/shaking, and that she had difficulty staying seated. There was localized pain over the left sacroiliac joint extending up the left paralumbar muscles. Deep tendon reflexes were equal bilaterally, but leg raising caused pain at 75 degrees, there was some numbness on the lateral aspect of the left foot, there was slight weakness of left foot dorsiflexion, and there was weakness of great toe extension. Also, there was moderate to severe restriction of muscle flexibility and poor left leg balance. The Veteran underwent physical therapy from February to March 2008, but there was no significant improvement of symptoms, her prognosis at the time of discharge was fair, and "it was evident that therapy had no long term carryover in her daily life." The report of an August 2008 VA back examination indicates that the Veteran reported that she experienced constant low back pain on a daily basis which radiated to the left posterior leg and foot. There was also cramping of the left foot and weakness. There was no numbness or bowel/bladder incontinence. She periodically used a cane and took medications and these treatments provided some symptom relief. There was no physician directed bedrest during the previous 12 months. As a result of her back symptoms, she was unable to sit or stand for more than 30 minutes or walk for more than 10 minutes. She was unable to perform any squatting or running. Flare ups of symptoms occurred, during which time she had to avoid weightbearing and was only able to perform minimal activities. She had last worked at a homework center in 2002, but stopped working because she was unable to keep up with the children and perform the walking that the job required. Examination revealed that the Veteran did not walk with a limp, that she was in constant motion (e.g., bending, twisting), and that her left leg twitched while she was sitting. There was "knee buckling tenderness" in the left paravertebral region, but there were no muscle spasms and there was normal spinal curvature. The ranges of motion of the thoracolumbar spine were recorded as being flexion to 55 degrees, extension and right and left lateral bending all to 50 degrees, and right and left rotation both to 50 degrees. There was pain in all ranges of motion. Deep tendon reflexes were normal (2+), motor strength was normal (5/5), sensation was normal, and there was no muscle atrophy in the lower extremities. There was positive truncal rotation pain, positive Burn's test, and positive straight leg raising. The Veteran was diagnosed as having chronic lumbosacral strain with significant evidence of symptom magnification. The physician who conducted the August 2008 VA examination addressed whether the Veteran had significant time limitations while employed (as noted in the 2003 report from the South Carolina Vocational Rehabilitation Department) and indicated that there were significant activity limitations according to the Veteran, but that her limitations at the time of the August 2008 examination seemed to have liberalized somewhat since her last examination. Regardless, the examiner noted that the Veteran's report of being unable to sit for more than 30 minutes was purely subjective and was not something that could be tested during an examination. The examiner concluded that the activity limitations described by the Veteran (i.e., unable to stand or sit for more than 30 minutes and unable to walk for more than 10 minutes) "certainly would make it difficult if not impossible for her to obtain and maintain gainful employment." The examiner noted, however, that he had documented symptom magnification on more than one occasion. Also, there were no additional limitations of spinal motion due to pain, fatigue, weakness, or lack of endurance following repetitive use. VA treatment records dated in January and June 2009 reflect that the Veteran experienced constant low back pain which was 4/10 in intensity, sharp/piercing in nature, and exacerbated by activity/exercise and prolonged sitting and standing. Medications, injections, and physical therapy had been utilized to try and alleviate the pain, but nothing worked to improve the back symptoms. Examinations revealed tenderness at L3-S1 and the left sacroiliac joint and positive straight leg raising on the left. In an April 2010 letter, L.G.K. reported that she had known the Veteran for 15 years and that during that time she observed the Veteran to be in extreme pain and discomfort due to back problems and had transported her to and from doctor's appointments and hospital stays. The Veteran was a willing individual, but her back and leg problems prohibited her from reaching her full potential. The Veteran's former high school teacher (K.S.) reported in an April 2010 letter that the Veteran was a studious and energetic student who could run, jump, roll, hop, skip, leap, and hang and that she had strength, agility, coordination, and endurance. K.S. had worked with the Veteran in 2001 after her discharge from service and K.S. noticed that the abilities and attributes that the Veteran possessed as a student no longer existed. She could no longer stand for a relatively short period of time without one noticing that she was experiencing severe pain and that there was a distortion in her physical appearance. She would bend side-ways and could no longer stand, her eyes became cross and the appearance of her face told others present that it was time to go home, and she would occasionally be absent from work for 2 to 4 days per week. The Veteran's endurance level suffered and her ability to complete a simple task was greatly impaired. K.S. further noted that she had been standing next to the Veteran on one occasion and heard a "crook or pop" sound. The Veteran explained that the sound was her back. During another occasion, K.S. and the Veteran flew to Phoenix for a job-related workshop. The Veteran endured the flight fairly well, but as soon as they arrived for the briefing the Veteran nearly fell out of her chair due to her back. She enrolled in a vocational rehabilitation program to no avail and she was always going home early or not attending work because of back problems. Overall, K.S. concluded that there was "no doubt in [her] mind that [the Veteran would] never be able to work part-time, full-time or at any time." The Veteran reported in an April 2010 statement (VA Form 21-4138) that as a result of her back disability she was unable to obtain any form of gainful employment. During the previous 10+ years she had been unable to perform any normal activities. For instance, she was unable to sleep at night due to pain, walk any distances, sit, stand for any period of time, ride/drive in a car, or have any relationships. Also, the medication that she took for pain caused her to be drowsy all of the time and she was unable to function. In June 2015, the Director reviewed the Veteran's claims file, summarized some of the relevant evidence, and explained that the Veteran stopped working in September 2003 due to her service-connected back disability and an inability to walk and sit because of the disability. The State Vocational Rehabilitation Program results and medical evidence revealed that the Veteran had almost full range of motion of the thoracolumbar spine and was able to perform work activities at a sedentary to light work level, as long as she was able to frequently change positions between sitting, standing, and walking. Thus, the Director found that the record did not show that the Veteran was unable to secure and follow substantially gainful employment and that she did not meet the criteria for an extra-schedular TDIU under 38 C.F.R. § 4.16(b). The Veteran reported in a February 2017 statement that although she usually had a great range of motion when she woke up in the morning, there were days when she would have to hold the walls to make it to the bathroom or any part of the house. During such days, lying down was the best position. Her back pain was generally 7-8/10 in intensity, but the pain was 10/10 during flare ups. The flare ups usually lasted for 8 hours at a time, but could last longer. She was on strong medication for her back pain which made her drowsy and limited her ability to drive. Her ability to perform many activities (e.g. gardening, any type of yard work) was very limited because of back pain. Moreover, she experienced pain which radiated down her left leg, she was only able to walk for 30 minutes before having to sit down and rest, and flare ups of pain occurred after sitting for 30 minutes or longer. Flare ups required her to take her medication and lie down to ease the pain. In a March 2017 vocational assessment report, certified vocational evaluator P. Clifford reported that he had provided vocational rehabilitation services to individuals with physical and mental disabilities since 1987 and that he had reviewed the Veteran's entire claims file. He noted that the Veteran was last employed in September 2003, at which time she worked briefly as a tutor/mentor/school aide for field trips. A transferable skills analysis was conducted utilizing the bureau of labor statistics dictionary of occupational titles and the Veteran's former occupation (classified as teacher aide II) was considered light in physical demand and unskilled in nature with a specific vocational preparation rating of three which indicates that a short demonstration is sufficient to master required job tasks. This occupation requires low levels of reasoning, mathematical and language ability. The performance of unskilled occupations does not provide the worker with a skill base to alternative sedentary occupations. The vocational evaluator then summarized the pertinent evidence from the Veteran's claims file and explained that the Veteran suffers from chronic pain associated with her lumbar spine disability. She experiences debilitating episodes of pain which occur several times per month, may last for prolonged periods of time, and occur without warning. She also suffers from physical limitations associated with her lumbar spine disability in that she is significantly limited in her ability to walk, stand, and sit. She must alternate frequently between sitting, standing, and walking in an attempt to manage her chronic pain. She has attempted to work as a teacher's aide/tutor, but she was incapable of maintaining this occupation due to her chronic pain and limitations. The negative vocational impact produced by these pain episodes and physical limitation would include disturbances in concentration and completion of tasks, frequent unscheduled absences, and unacceptable levels of prolonged absenteeism from the place of employment. P. Clifford further explained that he agreed with the March 2006 findings of vocational rehabilitation counselor C. Gross that the Veteran had physical disabilities that would prevent her from performing a sustained gainful workday, either part-time or full-time. He also agreed with Dr. Bash's January 2006 opinion that the Veteran was unemployable due to solely to her back disability. The Veteran's educational development and past employment as a teacher's aide had not provided her with a skill base that transfers to sedentary alternative substantially gainful employment. When the effects of her disabling condition, limited education, and lack of transferable skills are considered together, they result in a total inability of the Veteran to maintain substantial gainful employment, even at the sedentary level. In particular, even a sedentary level of employment requires a worker to be able to successfully maintain the pace and production expected by the employer without frequent interruption. An employee must also be capable of maintaining a regular and predictable work schedule without excessive absenteeism. It was likely ("more likely than not") that the unpredictable nature and duration of symptoms experienced by the Veteran would render her unable to maintain a regular and predictable work schedule or meet the pace and production demands required in competitive employment, even at the sedentary level. In sum, P. Clifford concluded that based on his experience and a review of the Veteran's records, it was his vocational opinion that due to her chronic symptoms, the Veteran has been unable to maintain substantial gainful competitive employment on a regular and consistent basis (even at the sedentary level of work) due to service-connected disability since at least 2003, when she was last capable of performing the required job tasks of a teacher's aide without significant interference from symptoms associated with her lumbar back disorder. P. Clifford opined that it was within a high degree of certainty that the Veteran is unable to sustain gainful competitive employment due to her service-connected disability. The above-described evidence indicates that the Veteran received some college education and that she primarily engaged in unskilled physical and semi-physical employment in a department store and as a teacher's aide in the years prior to her unemployment. She stopped working as a teacher's aide in 2003 and has consistently reported that she stopped working due to limitations caused by pain associated with her service-connected back disability. In particular, she has reported an inability to sit, stand, and walk for prolonged periods due to back pain. She has been continuously unemployed since 2003. Although there is some evidence of symptom magnification, the Veteran's medical records, the lay statements submitted by her friend and former teacher, and the vocational opinions of record support a conclusion that the limitations caused by the Veteran's service-connected back disability are severe enough to preclude substantially gainful employment (both physical and sedentary) consistent with her education and occupational experience. As a final point, the Board acknowledges that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 134 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, as medical examiners are responsible for providing a full description of the functional effects of disability upon a person's ordinary activity (see 38 C.F.R. § 4.10 (2016)), and have done so here, the findings, comments and opinions of VA examiners have appropriately been considered as pertinent evidence, along with the private vocational opinions and the Veteran's competent assertions, in determining whether she can perform the mental and physical acts required for substantially gainful employment. While such evidence is not dispositive, the Board finds that the collective evidence is sufficient to warrant application of the benefit-of-the-doubt doctrine. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding any issue material to the determination of a matter, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the competent, probative evidence of record indicating that the Veteran's service-connected back disability precludes substantially gainful employment, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, the criteria for a TDIU due to service-connected disability on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) are met. B. Extra-Schedular Rating for Lumbar Disc Disease The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran testified on the record during the January 2006 Board hearing that an award of a TDIU would satisfy her appeal (including her appeal as to the issue of entitlement to an initial extra-schedular rating in excess of 40 percent for lumbar disc disease pursuant to 38 C.F.R. § 3.321(b)) (see page 31 of the hearing transcript). In light of the above award of a TDIU, and pursuant to the Veteran's hearing testimony, there remain no allegations of error of fact or law for appellate consideration with regard to the claim for a higher initial extra-schedular rating for lumbar disc disease. Accordingly, the Board does not have jurisdiction to review the appeal as to this matter, and it must be dismissed. ORDER A TDIU due to service-connected disability on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) is granted, subject to the legal authority governing the payment of VA compensation. The appeal as to the claim for an initial, extra-schedular rating in excess of 40 percent for lumbar disc disease. pursuant to 38 C.F.R. § 3.321(b), is dismissed. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs