Citation Nr: 1800188 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 07-19 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an effective date for the grant of service connection for degenerative disc disease of the lumbar spine, prior to January 14, 1991. 2. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, from July 13, 2000, to June 28, 2005 (lumbar spine disability). 3. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling, since March 1, 2007 (lumbar spine disability). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty with the United States Navy from January 1973 to February 1973 and he served on active duty with the United States Army from April 1975 to October 1981. These matters come before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). In June 2011, the Board denied a rating in excess of 40 percent for degenerative disc disease of the lumbar spine from June 28, 2005 to January 23, 2007, and remanded the issues of entitlement to an effective date for service connection for degenerative disc disease of the lumbar spine, prior to January 14, 1991, and entitlement to an increased rating for lumbar degenerative disc disease evaluated as 20 percent disabling from July 13, 2000, to June 27, 2005, for issuance of a statement of the case (SOC). In addition, the Board remanded the issue of entitlement to a rating in excess of 40 percent, for degenerative disc disease of the lumbar spine, since March, 2007, for additional development. In December 2016, the case was remanded again in order to determine if there was additional evidence regarding Veteran's the claim regarding an earlier effective date for degenerative disc disease, an addendum opinion regarding the Veteran's disability, and for an addendum decision from the Director of Compensation Service regarding the Veteran's claim for extra-schedular consideration. FINDINGS OF FACT 1. The record does not reflect that the Veteran filed a formal or informal claim for service connection for degenerative disc disease of the lumbar spine, prior to January 14, 1991. 2. From July 13, 2000, to June 28, 2005 the Veteran's disability was manifested with symptoms of pain on movement and moderate intervertebral disc syndrome. 3. Throughout the course of the appeal, the Veteran's lumbar spine disability has not resulted in ankylosis. 4. The Veteran's disability does not present an exceptional or unusual disability picture to warrant an extra-schedular evaluation. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 14, 1991, for a grant of service connection for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 2. The Veteran has not met the criteria for a rating in excess of 20 percent for a lumbar spine disability from July 13, 2000 to June 28, 2005. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5295 (2003); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5010, 5235-5243 (2017). 3. From March 1, 2007, the criteria for a rating in excess of 40 percent for a lumbar spine disability were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5295 (2003); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In this appeal, the Board finds the letter dated in February 2005 before the February 2006 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letter, the rating decision, the statement of the case, the remands, and the supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has searched for and secured all available documents related to the Veteran's claim for an earlier effective date and VA has identified pertinent in-service treatment records and post-service evidence to include his VA treatment records in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In addition, VA has obtained an opinion regarding the Veteran's claim for extraschedular consideration and VA has also provided the Veteran with several VA examinations to determine the severity of the Veteran's lumbar spine disability in July 2000, April 2003, June 2005, October 2005, January 2007, June 2013, and March 2017. Moreover, the Board finds that the opinion provided by the April 2017 VA examiner is adequate to adjudicate the claim regarding the Veteran's disability and substantially complies with the Board's remand instructions because it was provided after a review of the record on appeal, it referred to a detailed medical history from the claimant, and, after the Veteran was examined, the examiner provided an opinion as to the diagnosis and origins of his claimed disabilities, which was based on citations to the relevant evidence found in the claims file. Therefore, the record is now sufficient to decide the claim. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Steagal, supra; D'Aries, supra; Dyment, supra. Lastly, neither the Veteran nor his representative has argued that any prejudice results from the assistance provided for this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the VBMS and virtual VA claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claim's folders show, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. The Claims A. Earlier Effective Date The Veteran seeks entitlement to an effective date for the grant of service connection for degenerative disc disease of the lumbar spine, prior to January 14, 1991 Unless specifically provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2016). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). For VA compensation purposes, a "claim" is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). The Veteran asserts that he is entitled to an earlier effective date for service connection of his lumbar spine disability due to a May 1990 letter that informed him of his service connected disabilities and the amount of monthly benefits that he was receiving for them. The letter stated that he was receiving 30 percent disability for a spinal disc condition, and 0 percent ratings for bursitis, loss of motion in lumbar spine, and sinusitis. See May 23, 1990, VA correspondence. The Board finds this letter to be a typographical error and there is no evidence in the Veteran's claims file to suggest otherwise. The Board has thoroughly examined the Veteran's claims file and has found no formal or informal communications from the Veteran that would show that he filed a claim for his lumbar spine disability prior to January 1991. In December 1987, the Veteran filed a disability claim for his cervical spine injury. In that letter he also stated that " upon my release from service, I received a service-connected pension. My original award letter stated condition of skeletal system. When I inquired at the V.A.M.C. in Miami, Florida as to the meaning of this ambiguous term, I was told it included my right thumb, right hip, and cervical injury. This satisfied me at the time." See December 3, 1987, Statement in Support of Claim. The information that was provided to the Veteran was in reference to the December 1981 rating decision in which he was awarded 0 percent ratings for residuals injury of the right hip with recurrent trochanteric bursitis, residual injury of the right thumb, and chronic sinusitis. The notification letter in conjunction with the rating decision stated that service connection has been established for bursitis, condition of the skeletal system, and sinusitis. These disabilities were all rated at 0 percent and then the Veteran received a combined 10 percent rating. See December 1981 Rating Decision and Notification Letter. Following the Veteran's application for a cervical spine disability in 1987, the Veteran received a rating decision in October 1988. That rating decision granted service connection for a cervical spine disability. The rating decision also included a list of the Veteran's service-connected disabilities. The rating decision stated that the Veteran was receiving a 30 percent rating for degenerative disc disease of the cervical spine with radiculopathy and 0 percent ratings for the right hip disability, right thumb disability, and chronic sinusitis. The Veteran now had a combined rating of 30 percent for these disabilities. See October 1988 Rating Decision. Subsequently, the Veteran filed a Statement in Support of Claim in January 1989 in which he stated that he disagreed with the effective date of his cervical spine disability. The Board notes that in this document the Veteran made no mention of a lumbar spine disability at this time and only discussed his cervical spine disability. See January 4, 1989 Statement in Support of Claim. In January 1991, the Veteran sent in a Statement in Support of Claim and stated that "I wish to reopen my service connection claim for degenerative joint disease of the cervical and lumbar spine." See January 9, 1991 VA Statement in Support of Claim. This document was received on January 14, 1991, and this was the first communication by the Veteran to VA that he had a lumbar spine disability. Next, the Veteran received a rating decision in June 1991 that discussed his cervical spine condition and denied service connection for his lumbar spine disability. However, VA found that the notification letter accompanying the rating decision did not include the lumbar spine disability and the Veteran was not properly notified of the decision denying service connection. As a result, the rating decision did not become final and the claim essentially remained open. In May 2001, the Veteran once again filed a claim for service connection for a lumbar spine disability. Afterwards, the Veteran was granted service connection for this claim with an effective date of May 15, 2001. The Veteran filed a timely notice of disagreement regarding the effective date of the award and in February 2006 the Veteran was awarded an earlier effective date of January 14, 1991, when he originally filed his claim. In sum, the record shows that there is no evidence that the Veteran submitted a claim for a lumbar spine disability prior to January 14, 1991, and there is no evidence that service connection had been granted prior to that date. Thus, the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for degenerative disc disease of the lumbar spine, prior to January 14, 1999, and the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107 (b); Gilbert v, Derwinksi, 1 Vet. App. 49, 53-56 (1990). B. Entitlement to a Rating in Excess of 20 percent For Degenerative Disc Disease of the Lumbar Spine, from July 13, 2000, to June 28, 2005. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert, supra. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran's disability is rated at 20 percent for this time period according to Diagnostic Code 5293. Since the Veteran's claim contains a period of time that contained Diagnostic Codes that were revised, the Board will examine all the applicable Diagnostic Codes to afford the Veteran the highest possible disability rating under the regulations in effect prior to and after September 26, 2003. A 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In addition, the Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson, supra; DeLuca, supra. However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson, supra. Moreover, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of any additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups". Id. at 10. The Board notes that there have been a number of changes in the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a. The new criteria for rating intervertebral disc syndrome became effective September 23, 2002. See 67 Fed. Reg. 54345 (Aug, 22, 2002). Further, additional regulatory changes for rating all other back disorders became effective September 26, 2003, but these did not change the way intervertebral disc syndrome was rated, except for renumbering Diagnostic Code 5293 as Diagnostic Code 5243. See 68 Fed. Reg. 51454-56 (Aug. 27, 2003). 69 Fed. Reg. 32449 (June 10, 2004) corrected a clerical error in the Federal Register publication of August 27, 2003. Accordingly, the Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the Veteran's spine disability is warranted. VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. Effective September 23, 2002, VA revised the criteria for rating intervertebral disc syndrome (IVDS) to utilize incapacitating episodes when evaluating IVDS. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for rating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Disabilities and injuries of the spine are currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. The revised provisions of Diagnostic Code 5293 were also redesignated as Diagnostic Code 5243 for intervertebral disc syndrome, effective September 26, 2003. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the prior version of the regulation. For purposes of this decision, the words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 For purposes of this decision, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Plate V, 38 C.F.R. § 4.71a. Moreover, it is important to note that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The relevant codes that pertain to the Veteran's lumbar disability prior to September 26, 2003 are Diagnostic Codes 5285, 5286, 5289, 5292, 5293, and 5295. Diagnostic Code 5285 (prior to September 26, 2003) provides a 60 percent rating for residual fractures of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace and a 100 percent rating for a fracture with cord involvement requiring long leg braces or being bedridden. 38 C.F.R. § 4.71a, Diagnostic Code 5285. Diagnostic Code 5286 provides a 60 percent rating for complete ankylosis of the spine at a favorable angle and a 100 percent rating for complete ankylosis of the spine at an unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5286. Diagnostic Code 5289 (prior to September 26, 2003), provides a 40 percent rating for favorable anklyosis of the spine and a 50 percent rating for unfavorable ankylosis of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5289 Diagnostic Code 5292 (prior to September 26, 2003),provides a 10 percent evaluation for slight limitation of motion of the lumbar spine, a 20 percent evaluation for moderate limitation of motion of the lumbar spine, and a 40 percent evaluation for severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292. Diagnostic Code 5293 (prior to September 26, 2003), which provides a 10 percent rating for mild IVDS, a 20 percent rating for moderate; recurring attacks of IVDS, a 40 percent evaluation for recurring attacks of severe IVDS with intermittent relief, while a 60 percent rating is warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). Diagnostic Code 5293 under the revised criteria, effective September 23, 2002, is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5293, as amended by 67 Fed. Reg. 54345-54349 (August 22, 2002). A 10 percent evaluation is assigned with incapacitating episodes of having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent evaluation is assigned with incapacitating episodes of having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician. Diagnostic Code 5295 (prior to September 26, 2003), provides a 10 percent evaluation is warranted for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Lastly, a 40 percent disability evaluation is warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral lumbar motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242) (since September 26, 2003), a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or an abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. For VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees. See 38 C.F.R. § 4.71a, Plate V. In addition, IVDS is to be evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Turning to the medical evidence at hand, the Veteran first attended an examination in July 2000. At this examination, the examiner reported that the Veteran had constant neck and low back pain. The Veteran was subject to spasms of the right shoulder and trapezius area and the low back pain radiated into both buttocks and down the back of the right leg to the knee. In addition, the Veteran did not have paresthesia or hypoesthesia of the right leg. Moreover, the VA examiner reported that the Veteran had no paravertebral muscle spasm and he was able to walk on his heels and toes normally. Furthermore, the Veteran did exhibit pain on motion, and he had to roll on his side before he could roll onto his back. The examiner reported that the Veteran's range of motion of the lumbar spine showed flexion to 50 degrees, extension to 26 degrees, right lateral bending to 30 degrees, and left lateral bending to 30 degrees and 45 degrees bilaterally on rotation. See July 2000 VA examination. Following this examination, the Veteran attended another examination in April 2003. At that examination, the examiner reported that the Veteran's lumbosacral spine could flex down to 60 degrees but he had pain at 50 degrees flexion of the spine forward. As to extension, he could only extend it 10 degrees backwards. The examiner also diagnosed him with degenerative disc disease without definite herniation or impingement on the subarachnoid space to cause nerve entrapment. See April 2003 VA examination. Subsequently, the Veteran attended another examination in June 2005. The Veteran reported that the pain in his back used to be intermittent and it was now a constant 7/10 without medications and a 4/10 with medications. The Veteran also reported that he could not work longer than 8 hour days and usually after three to four hours he needed to rest for fifteen minutes. In addition, the Veteran stated that flare-ups occurred twice a week and he treated it with heat and medications. Lastly, the Veteran reported that he had some difficulty walking but was able to walk during a flare up. The examiner then reported that the Veteran had no pain on palpation over the spine. The examiner added that the Veteran had no obvious weakness or spasm and he had pain over the bilateral SI joints on palpation. The examiner added that the Veteran's forward flexion was to 60 degrees with pain starting at 20 degrees although after the second forward flexion the patient refused to forward flex any further in order to evaluate for Deluca because he stated he had too much pain. Moreover, the Veteran's extension was to 5 degrees out of 30 degrees with pain at 5 degrees, right lateral and left lateral flexion was to 30 degrees, and right lateral and left lateral rotation was 30 degrees all with discomfort. Lastly the examiner reported that the Veteran had diminished reflexes bilaterally and negative straight-leg lift. See June 2005 VA examination. In addition to the VA examinations, the Board has reviewed the Veteran's medical history for this time period. The Veteran's medical history shows that the Veteran received treatment for back pain and uses medication to control his pain however; the Veteran's medical records show symptoms reported in these records that his disability was worse than what was reported at his VA examinations. See August 8, 2003, October 7, 2003, December 5, 2003 VA Progress Notes See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board has reviewed the Veteran's medical history, his lay statements, and the corresponding VA examinations. The Board finds that the VA examinations during this time period are the most probative pieces of evidence in regards to the severity of the Veteran's lumbar spine disability. In reaching this conclusion, the Board has not overlooked the lay statements the Veteran has made regarding the severity of his condition but finds that the VA examinations during this time period are the most probative pieces of evidence because these evaluations specifically addressed the severity of the Veteran's lumbar spine. Accordingly, the Board has placed significant weight on those evaluations. Davidson, supra IVDS-The Old Criteria Initially, the Board examined Diagnostic Code 5010 as it related to the Veteran's limited range of motion due to the degenerative disc disease in his spine. During this time period the Veteran was assigned a 20 percent rating according to Diagnostic Code 5293, but as shown more fully below, this rating was actually assigned, in part, for his pain on motion, radiating low back pain, and slightly depressed deep tendon reflex on the right side. Thus, a separate rating under this Diagnostic code would result in impermissible pyramiding and a rating increase under this Diagnostic Code is not warranted because the Veteran's loss of motion has already been accounted for. The Board has also considered Diagnostic Code 5293. The Board notes that the Veteran has reported he experienced pain and he took pain medication to treat this symptom. The medical evidence also demonstrated that the Veteran was able to walk on his heels and toes normally, there was no muscle spasm, and deep tendon reflexes were present in both lower extremities. Even after taking into account the Veteran's lay statements, the record does not show that the Veteran's disability exhibited signs of severe IVDS with intermittent relief. In addition, the record also did not indicate that the Veteran's disability exhibited pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Thus, an increased rating under this Diagnostic Code is not warranted. Next, the Board evaluated the Veteran's disability according to Diagnostic Codes 5285, 5286, 5289, 5292, and 5295. As to Diagnostic Codes 5285, 5286, and 5289, the medical evidence on record did not show that the Veteran has a service-connected fractured lumbar vertebra. There being no demonstrable vertebral deformity due to a service connected fracture, a 10 percent rating may not be added to the rating. Furthermore, the lumbar spine injury did not include cord involvement requiring long leg braces. Finally, the Veteran was able to move his lumbar spine, at least to some degree in some plane of motion, in all the treatment records and at the VA examinations. Hence, the lumbar spine is not ankylosed. Thus, a higher evaluation is not warranted for the Veteran's service-connected lumbar spine disability under Diagnostic Codes 5285, 5286, or 5289 at any time during this time period. 38 C.F.R. § 4.71a (2003). As to Diagnostic Codes 5292 and 5295, during this time period no examiner has characterized the Veteran's lumbar spine disability as having "severe" lost motion nor has any examiner reported that the Veteran's disability showed evidence of listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Thus, an increased rating under these Diagnostic Codes is not warranted for this time period. IVDS-The New Criteria Under the revised Diagnostic Code 5293, the Veteran would be entitled to a rating increase if his disability manifested itself with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months or incapacitating episodes having a total duration of at least six weeks during the past twelve months. In this case, because the record for this period of the appeal does not show such periods of bed rest prescribed by a physician, a rating increase under this Diagnostic Code is not warranted. In addition, the Board has evaluated the Veteran's disability according to Diagnostic Codes 5235 to 5243. In terms of range of motion, the Veteran's examinations indicated that in July 2000 the examiner reported that the Veteran's range of motion of the lumbar spine showed flexion to 50 degrees, extension to 26 degrees, right lateral bending to 30 degrees, and left lateral bending to 30 degrees and 45 degrees bilaterally on rotation. See July 2000 VA examination. Moreover, in April 2003, the Veteran's lumbosacral spine showed flexion to 60 degrees but the Veteran had pain at 50 degrees flexion of the spine forward. As to extension, the examiner reported that Veteran could extend 10 degrees backwards. See April 2003 VA examination. In sum, the Board finds that the Veteran's condition has remained consistent throughout this time period and a rating increase in excess of 20 percent prior to June 28, 2005, is not warranted. In reaching this conclusion, the Board has considered the lay statements provided by the Veteran, his medical history, and the examinations conducted by VA personnel. Accordingly, the Board finds the VA examinations to be the most probative evidence regarding the Veteran's disability during this time period and places significant weight on those reports. Thus, the Board finds that the preponderance of the evidence is against granting the Veteran's claim for a rating in excess of 20 percent for a lumbar spine disability from July 13, 2000, to June 28, 2005. 38 U.S.C.§ 5107; 38 C.F.R. §§ 3.102, 4.71a Diagnostic Codes 5289, 5292, 5293, 5295, 5235-5243. C. Entitlement to an Increased Rating for Degenerative Disc Disease of the Lumbar Spine, Evaluated as 40 Percent Disabling, since March 1, 2007 The Veteran's disability is rated at 40 percent for this time period according to Diagnostic Code 5293. As previously discussed above, the Veteran's disability will be evaluated according to both sets of Diagnostic Codes concerning general diseases and injuries of the spine. The Veteran was awarded a 100 percent rating effective January 24, 2007 due to surgery on his service-connected lumbar spine disability. An evaluation of 40 percent was assigned from March 1, 2007. Turning to the medical evidence at hand, the Veteran was afforded a VA examination in January 2007. At the examination the Veteran reported he still has pain all the time with radiation down both legs. In addition, the Veteran reported that he has flare-ups with prolonged standing or sitting, and the flare-ups last one to two hours. Moreover, the Veteran reported that after three hours of standing he does have to go and lie down for 15 minutes at work with a heating pad and stated that he can walk about two hundred feet without having to stop and rest on occasion. Lastly, the Veteran reported that he has no incapacitating episodes over the past twelve months. After the examination, the examiner reported that there is no objective evidence of weakness fatigue spasm. The examiner added that there is subjective tenderness on palpation over the paravertebral L4-L5. Next, the examiner reported that the Veteran had forward flexion to 20 degrees and the Veteran states that he cannot go beyond that due to pain and catching of the muscles. In addition, the Veteran had extension 10 degrees, right lateral left lateral flexion and right lateral left lateral rotation 20 degrees, and no limitations with repetitive use. See January 2007 VA examination. Following the examination, the Veteran was afforded a VA examination in June 2013. The Veteran stated that he needed to change positions frequently and that the pain changes in intensity and he had problems with flare-ups. The Veteran added that the frequency of flare-ups is every couple of months and he stated that he recently went to the ER for acute flare-up of back pain. The Veteran stated that he was given bed rest at the time. The examiner commented that they thoroughly reviewed the medical records from the ER visit and there was no mention of the Veteran being prescribed bed rest. The examiner then reported that the Veteran had forward flexion to 35 degrees with pain at 35 degrees. The Veteran's extension ends at 0 degrees and painful motion begins at 0 degrees. The Veteran's lateral flexion ends at 20 degrees, left lateral flexion ends at 20 degrees, and painful motion began at 20 degrees. The Veteran's lateral rotation ends at 25 degrees with painful motion at 25 degrees and left lateral rotation at 25 degrees with painful motion begins at 25 degrees. The examiner added that the Veteran was able to perform repetitive use testing and post-test forward flexion ended at 35 degrees and post test extension ended at 0 degrees. Post-test right lateral flexion ended at 20 degrees, post test left lateral flexion ended at 20 degrees and post test lateral rotation ended at 25 degrees. In addition, the examiner reported that the Veteran had additional limitation of his range of motion after repetitive testing with less movement than normal and pain on movement. Moreover, the examiner reported that the Veteran had localized tenderness on his thoracolumbar spine. Furthermore, the examiner reported that the Veteran had IVDS and no incapacitating episodes in the last 12 months. Lastly, the examiner reported that this condition would prevent physical employment due to increased absenteeism and this condition would also at least as likely as not prevent sedentary employment secondary to the need to frequently switch positions. See June 2013 VA examination. The Veteran was afforded another examination in March 2017. At this examination, the Veteran reported that he has flare-ups at times beyond typical day to day pain this affects range of motion due to increased pain. The examiner stated that they cannot quantify change in range of motion of flared vs non-flared because there is no comparison range of motion to make with today's exam. The examiner reported that the Veteran had forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. The examiner also noted that the Veteran could not fully bend over to reach the floor or reach fully side to side. In addition, the examiner reported that there was pain with weight bearing and the Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. Moreover, the examiner reported that the examination was not being conducted during a flare-up but was medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner reported that the Veteran experiences pain, fatigue, and lack of endurance during a flare-up. Furthermore, the examiner reported that the Veteran does not have ankylosis of the spine, and he has not had any episodes of acute signs and symptoms of IVDS that has required bed rest prescribed by a physician in the last twelve months. Lastly, the examiner stated that the Veteran's lumbar spine disability precluded gainful occupations requiring lifting, loading, and climbing, but it did not preclude gainful sedentary occupations. In addition to the VA examinations, the Board has reviewed the Veteran's medical history for this time period. The Veteran's medical history shows that he received received treatment for back pain, participated in physical therapy, and uses medication to control his pain however; the Veteran's medical records do not show symptoms reported in these records that his disability is worse than what was reported at his VA examinations. See May 7, 2009 VA Progress Notes. See Colvin, supra. The Board has reviewed the Veteran's medical history, his lay statements, and the corresponding VA examinations. The Board finds that the VA examinations during this time period are the most probative pieces of evidence in regards to the severity of the Veteran's lumbar spine disability. In reaching this conclusion, the Board has not overlooked the lay statements the Veteran has made regarding the severity of his condition but finds that the VA examinations during this time period are the most probative pieces of evidence because these evaluations specifically addressed the severity of the Veteran's lumbar spine. Accordingly, the Board has placed significant weight on those evaluations. Davidson, supra. IVDS- The Old Criteria Initially, the Board examined Diagnostic Code 5010 as it related to the Veteran's limited range of motion due to the degenerative disc disease in his spine. During this time period the Veteran was assigned a 40 percent rating according to Diagnostic Code 5293. Thus, a separate rating under this Diagnostic code would result in impermissible pyramiding and a rating increase under this Diagnostic Code is not warranted because the Veteran's loss of motion has already been accounted for. The Board has also considered examined Diagnostic Code 5293. The Board finds that the Veteran's disability does not meet the criteria for a 60 percent rating according to this Diagnostic Code. The Board notes that the Veteran has reported he experienced pain and he took pain medication to treat this symptom. Even after taking into account the Veteran's lay statements, the record does not show that that the Veteran's disability exhibited pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Moreover, the record does not show that the Veteran experienced incapacitating episodes having a total duration of at least six weeks. Thus, an increased rating under this Diagnostic Code is not warranted. Next, the Board evaluated the Veteran's disability according to Diagnostic Codes 5285, 5286, 5289, 5292, and 5295. As to Diagnostic Codes 5285, 5286, and 5289, the medical evidence on record did not show that the Veteran has a service-connected fractured lumbar vertebra. There being no demonstrable vertebral deformity due to a service connected fracture, a 10 percent rating may not be added to the rating. Furthermore, the lumbar spine injury did not include cord involvement requiring long leg braces. Finally, the Veteran was able to move his lumbar spine, at least to some degree in some plane of motion, in all the treatment records and at the VA examinations. Hence, the lumbar spine is not ankylosed, and a higher evaluation is not warranted for the Veteran's service-connected lumbar spine disability under Diagnostic Codes 5285, 5286, or 5289 at any time during this time period. 38 C.F.R. § 4.71a (2003). As to Diagnostic Codes 5292 and 5295, during this time period the Veteran is already in receipt of the maximum schedular rating allowed under these Diagnostic Codes. Thus, an increased rating under these Diagnostic Codes is not warranted for this time period. IVDS- The New Criteria The Board has evaluated the Veteran's disability according to Diagnostic Codes 5235 to 5243. The Board finds that a rating in excess of 40 percent is not warranted. The Veteran does not meet the criteria for a 50 percent rating because the record does not show that he has unfavorable anklyosis of the entire thoracolumbar spine nor is he eligible for a rating of 100 percent because he does not have unfavorable anklyosis of the entire spine. The Board has also considered whether the recent holding in Sharp, in which an examiner must provide an opinion regarding additional range of motion loss due to pain, would require a remand for a new VA examination. However, in this case, findings of greater limitation of motion would not be beneficial for the Veteran because a rating in excess of 40 percent for a lumbar spine disability requires a finding of ankylosis. The Veteran's examinations and medical history do not show any signs or symptoms of ankylosis. Moreover, the examinations that the Veteran attended included range of motion testing and his pain and lost range of motion were adequately evaluated during this examination. Thus, the Veteran is in receipt of the highest rating based on limitation of motion and the evidence contained in the record has shown that the Veteran does not have signs or symptoms of ankylosis so a remand for a new examination would only delay the outcome of this case and impose a burden on the Veteran to attend an additional examination. See Johnson, supra. Thus, a remand in order to comply with Sharp is not warranted. In sum, the Board finds that the Veteran's condition has remained consistent throughout this time period and a rating increase in excess of 40 percent is not warranted. In reaching this conclusion, the Board has considered the lay statements provided by the Veteran, his medical history, and the examinations conducted by VA personnel. Accordingly, the Board finds the examinations to be the most probative evidence regarding the Veteran's disability and places significant weight on those reports. Thus, the Board finds that the preponderance of the evidence is against granting the Veteran's claim for a rating in excess of 40 percent for a lumbar spine disability since March 1, 2007. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.71a Diagnostic Codes 5235-5243. III. Extra-Schedular Consideration. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here in this case, extra-schedular consideration was considered. On May 12, 2014, the Director Compensation of Service denied an increase in the Veteran's lumbar spine condition on an extra-schedular basis because the totality of the evidence did not support the criteria for extra-schedular finding pursuant to 38 CFR § 3.321(b)(1). The opinion stated that Veteran's condition did not present any unusual or exceptional disability pattern that would render the application of the regular rating criteria as impractical. The opinion further added that the Veteran's lumbar condition had been properly evaluated and accurately adjudicated at that time. Then in 2015, VA received Social Security (SSA) disability records demonstrating that the Veteran was awarded disability for SSA purposes from February 1, 2010, for disorders of the back and anxiety related disorders. Consequently, the Board specifically requested that the Director of Compensation Service provide an addendum to the previous extra-schedular decision from May 2014, in order to include SSA disability information. Subsequently, the Director of Compensation Service reviewed such records along with all other evidence in order to provide an addendum as requested by the Board. After careful review of the entire evidence of record to date, the Director of Compensation Service stated that there continues to be insufficient evidence to demonstrate that the Veteran had marked interference with employment due solely to his lumbar service-connected condition nor was an exceptional disability pattern found. Moreover, the opinion continued by stating that the medical objective findings for this condition are consistent with the current evaluation. Furthermore, the opinion added that "the current evaluation adequately addresses the severity of his service-connected degenerative disk disease of the lumbar spine. See Thun v Peake, No. 05-2066. (April 2008), and VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996)." The opinion concluded by stating that "for these reasons, this Service concurred with the AMCs recommendation to deny an increase on an extra-schedular basis (§ 3.321(b))". See August 15, 2017 Extra-Schedular Memo. IV. Additional Considerations Lastly, the Board does not find that the Veteran has raised an implied claim for TDIU. More specifically, during the pendency of this appeal, he has not claimed to be unable to work due to his service-connected back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). ORDER Entitlement to an effective date for the grant of service connection for degenerative disc disease of the lumbar spine, prior to January 14, 1991, is denied. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, from July 13, 2000, to June 28, 2005, is denied. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling, since March 1, 2007, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs