Citation Nr: 1800406	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  08-19 887	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased rating for degenerative disc disease, lumbar spine with lumbar spinal stenosis (previously rated as residuals of compression fracture at L1 and L2, with anterior wedging and kyphotic gibbus) ("low back disability"), evaluated as 10 percent disabling prior to July 19, 2011, as 20 percent disabling from July 19, 2011 to December 11, 2015, and as 40 percent disabling thereafter.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to December 12, 2015.

3.  Entitlement to a TDIU since December 12, 2015.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1966 to February 1970 and from October 1993 to December 1995.  The Veteran also had decades of National Guard service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  A videoconference hearing before the undersigned was held in March 2011; a transcript of the hearing is of record.

In June 2011, the Board remanded the Veteran's increased rating claim for additional development.  In May 2014, the Board issued a decision denying his claim.  The Veteran appealed, arguing that the Board failed to properly consider and adjudicate a claim of TDIU.  Additionally, he argued that the Board failed to provide sufficient reasons and bases as to why extraschedular consideration was not appropriate for his lumbar spine condition.  In April 2015, pursuant to a Joint Motion for Remand, the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the Veteran's claim for further action.

In November 2015, the Board remanded this matter for additional development, to include a contemporaneous examination.  

In a June 2017 rating decision, the RO assigned a 40 percent rating for the Veteran's low back disability, effective from December 12, 2015, the date of the most recent VA examination.  The Board observes, however, the Veteran has not indicated that this rating satisfies his appeal so his claim remains before the Board, and has been included on the title page of this decision, to include the recharacterization of such to show the staged ratings.  AB v. Brown, 6 Vet. App. 35 (1993).

This decision bifurcates the issue of entitlement to a TDIU into two separate time periods; prior to December 12, 2015 and since December 12, 2015.  Such bifurcation of the issue permits a grant of benefits under 38 C.F.R. § 4.16 (a) to which the evidence of record shows the Veteran is entitled, without delay of this grant of benefits awaiting compliance with procedural adjudication of the remainder of the TDIU appeal under 38 C.F.R. § 4.16 (b) for the period for which the service-connected disabilities did not meet the combined rating percentage criteria.  See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately).

The issue of entitlement to a TDIU prior to December 12, 2015 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to July 19, 2011, the Veteran's low back disability was manifested by pain, forward flexion to 80 degrees, and a combined range of motion of the thoracolumbar spine of 230 degrees, with no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis of the thoracolumbar spine, or incapacitating episodes requiring medically prescribed bed rest due to intervertebral disc syndrome.

2.  From July 19, 2011 to December 11, 2015, the Veteran's low back disability was manifested by pain, forward flexion limited to, at worst, 45 degrees, and a combined range of motion of the thoracolumbar spine of, at worst, 115 degrees, but it was not manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes requiring medically prescribed bed rest due to intervertebral disc syndrome.

3.  Since December 12, 2015, the Veteran's low back disability has been manifested by forward flexion to 30 degrees, but it was not manifested by unfavorable ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

4.  As of December 12, 2015, the Veteran met the schedular criteria for a TDIU, and his service-connected disabilities as likely as not precluded him from securing or following a substantially gainful occupation. 


CONCLUSIONS OF LAW

1.  Prior to July 19, 2011, the criteria for an evaluation in excess of 10 percent for a low back disability were not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5237-5243 (2017).

2.  From July 19, 2011 to December 11, 2015, the criteria for an evaluation in excess of 20 percent for a low back disability were not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5237-5243 (2017).

3.  Since December 12, 2015, the criteria for an evaluation in excess of 40 percent for a low back disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5237-5243 (2017).

4.  As of December 12, 2015, the criteria for a TDIU are met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

In the present case, VA's duty to notify was satisfied by way of a September 2006 letter to the Veteran.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  The Veteran has not identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.  Additionally, the Board finds that there has been substantial compliance with its previous remand directives, to include obtaining outstanding records and providing the Veteran with an updated VA examination.  

The Board acknowledges the Court's recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which it held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint.  Specifically, the Court stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59."  Id. at 169-170.

In the present matter, the examinations of record, to include the December 2015 VA examination, do not fully conform to the holding in Correia.  While this would ordinarily impose upon the Board a duty to remand the matter for an adequate VA examination, the Board draws attention to the fact that the Veteran's low back disability, which is currently evaluated at 40 percent disabling since December 12, 2015, is already afforded the highest available rating based upon range of motion.  In order to be awarded a higher evaluation, the Veteran would have to show the presence of ankylosis.  As such, any additional range of motion testing would be merely cumulative and redundant, as such findings could not be used to show how the Veteran is entitled to any higher evaluation for his low back disability based upon range of motion alone.  Additionally, for the period prior to December 12, 2015, any further contemporaneous range of motion testing would not be sufficiently indicative of the Veteran's range of motion in the past.  

Under these circumstances, the Board finds that a remand to obtain an additional examination would serve no useful or meaningful purpose and would only result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Thus, the Board will proceed to consider the Veteran's claim based on the evidence of record notwithstanding the requirements of Correia v. McDonald.

In light of the foregoing, the Board finds that 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, and that all necessary development has been accomplished.  Therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Increased Rating

The Veteran seeks increased ratings for his service-connected low back disability.

A. Legal Criteria

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time.  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In making all determinations, the Board must fully consider the lay assertions of record.  A Veteran is competent to report on that of which he or she has personal knowledge.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243.  All service-connected spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula).  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.  Diagnostic Code 5243 provides that intervertebral disc syndrome can be evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating when all disabilities are combined.  38 C.F.R. § 4.71a.

Under the general rating formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code.  Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation.  Fourth, each range of motion should be rounded to the nearest 5 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

Under the Incapacitating Episodes Rating Formula, a 10 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 

An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician.  Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician.  If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  38 C.F.R. § 4.40.  Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing.  VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id.

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.  Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements.  See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

B. Factual Background

The Veteran was afforded a VA examination in October 2006, and reported constant pain in the lower back, rated as 3 to 4, out of 10.  He also reported that his pain level increases to 5 to 6, out of 10, with prolonged sitting, and to 7 to 8, out of 10, with prolonged driving.  The Veteran reported some stiffness, but he denied use of a cane, crutch, or brace.  

On examination, the Veteran's gait was unremarkable, and no abnormal posture was noted.  There was no tenderness over the thoracic or lumbosacral spine, and no evidence of paravertebral muscle spasm.  Range of motion testing revealed forward flexion to 80 degrees; extension to 35 degrees; right and left lateral flexion to 40 degrees; and, right and left lateral rotation to 35 degrees.  The examiner noted there was pain at the endpoints of the movements.  Lower extremity muscle strength was normal and symmetrical.  The examiner indicated that functional loss due to pain and functional impairment was minimal to mild, although joint function was considered to be additionally limited by pain, fatigue and weakness secondary to repetitive use and flare-ups on a mild to moderate scale.  

During a December 2006 VA peripheral nerves examination, the Veteran denied loss of control of his bladder or bowels.  On examination, the Veteran's posture and gait were normal.

During the March 2011 Board hearing, the Veteran testified that he has trouble bending over due to his low back disability, which makes it hard for him to dress and clip his toenails.  He also testified that he had good days and bad days with respect to range of motion and that on a bad day, he has little to no range of motion.  

The Veteran was afforded a VA examination in July 2011.  The Veteran reported weekly flare-ups of low back pain precipitated by prolonged sitting or activities such as working in the yard.  The Veteran indicated that during such flare-ups, he is functionally impaired to the level of about 40 percent of his physical ability.  The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, and pain, but he denied spasm and urinary or bowel symptoms.  The examiner noted that there were incapacitating episodes of spine disease and that the Veteran reported being incapacitated 40 times per year.  It was indicated that the Veteran used corrective shoes, orthotic inserts, a cane, and a crutch.  

On examination, the Veteran's posture and gait were normal, there was no evidence of ankylosis, and there were no abnormal spinal curvatures.  There was no evidence of spasm, atrophy, guarding, or weakness.  There was evidence of tenderness, but it was not severe enough to result in abnormal gait or abnormal spinal contour.  Range of motion testing revealed forward flexion to 55 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; and, right and left lateral rotation to 15 degrees.  There was objective evidence of pain on active motion and following repetitive motion.  After three repetitions of range of motion, forward flexion decreased to 45 degrees, extension decreased to 10 degrees; and right and left lateral flexion decreased to 15 degrees.  Reflex and motor examinations were normal.  

The examiner indicated that the Veteran's low back disability affected his usual occupation in that the Veteran was assigned different duties and had increased absenteeism.  The examiner also noted that the Veteran's low back disability affected occupational activities due to decreased mobility, lack of stamina, weakness or fatigue, decreased strength in the lower extremities, and pain.  The examiner indicated that the Veteran's low back disability had moderate effects on usual daily activities, including chores, shopping, exercise, travel, driving, sports, bathing, grooming, dressing, and recreation.  

The Veteran was afforded a VA examination in May 2013.  The Veteran reported intermittent flare-ups of pain and stiffness that limited his activity level by 33 percent.  Range of motion testing revealed forward flexion to 60 degrees, with pain at 60 degrees; extension to 5 degrees, with pain at 5 degrees; right and left lateral flexion to 20 degrees, with no objective evidence of pain; and, right and left lateral rotation to 15 degrees, with no objective evidence of pain.  There was no additional limitation of range of motion after three repetitions, but there was additional functional loss/impairment due to less movement than normal, weakened movement, and pain on movement.  The examiner indicated that pain could significantly limit functional ability during flare-ups or with repeated use over time; however, the examiner was unable to describe any such additional limitation without resort to speculation because the Veteran was unable to replicate range of motion during a flare-up with certainty.  There was no evidence of localized tenderness, pain to palpation, guarding, or muscle spasm, and the Veteran did not use an assistive device.  The examiner opined that the Veteran's low back disability impacted his ability to work because "flare-ups of pain, stiffness, and weakness limit the ability to lift, ambulate, and sit without frequent position change."  

A June 2015 private treatment record shows that the Veteran was evaluated for low back pain.  He denied bladder dysfunction and changes in bowel habits.  On examination, the Veteran had full flexion of his low back and extension limited to 25 degrees.  

The Veteran was afforded a VA examination in December 2015.  The Veteran reported constant low back pain at a level of 3 out of 10, with flare-ups of pain at a level of 7 to 8 out of 10, several times per week.  He also reported significant problems with prolonged walking and playing golf, as well as pain with sitting or driving for extended periods.  

Range of motion testing revealed forward flexion to 35 degrees; extension to 15 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 20 degrees.  There was objective evidence of pain with all ranges of motion, and the pain itself caused functional loss.  After three repetitions of range of motion, forward flexion decreased to 30 degrees, extension decreased to 10 degrees; and right and left lateral rotation decreased to 15 degrees.  There was no evidence of guarding, muscle spasm, or ankylosis.  The examiner noted that the Veteran had intervertebral disc syndrome (IVDS) with episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months.  The examiner also noted that the Veteran used a cane.  The examiner opined that the Veteran's low back disability impacted his ability to work due to problems with prolonged standing and sitting.  

C. Analysis

The Veteran is currently assigned ratings for a low back disability pursuant to Diagnostic Code 5237.  Prior to July 19, 2011, the Veteran was assigned a 10 percent rating.  Between July 19, 2011 and December 11, 2015, the Veteran was assigned a 20 percent rating.  From December 12, 2015, the Veteran was assigned a 40 percent rating.

Period Prior to July 19, 2011

Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating in excess of 10 percent were not met for the period prior to July 19, 2011.

In order to warrant the next higher rating of 20 percent under the General Rating Formula, the evidence must show forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  In this case, the evidence does not indicate that forward flexion of the thoracolumbar spine was limited to 60 degrees or less, or that the combined range of motion of the thoracolumbar spine was 120 degrees or less.  Forward flexion was measured at 80 degrees and the Veteran's combined range of motion was measured at 230 degrees during the October 2006 VA examination.  

Nor does the evidence indicate that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The October 2006 VA examiner found no evidence of localized tenderness and no evidence of muscle spasm, and the Veteran's gait and posture were normal during the October 2006 and December 2006 VA examinations.  

The evidence also shows that the Veteran's back disability was not manifested by favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine, as defined in the notes to the General Rating Formula.  Accordingly, a rating greater than 10 percent is not warranted under the General Rating Formula.  See 38 C.F.R. § 4.71a.

In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain.  For a 20 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 30 and 60 degrees, or the combined range of motion must be less than 120 degrees, or there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  

Here, although there was evidence of pain at the endpoints of thoracolumbar spine range of motion during the October 2006 VA examination, the examiner noted that functional loss due to pain was minimal to mild.  Similarly, although the evidence shows that the Veteran had additional functional loss during flare-ups and with repetitive use due to pain, fatigue, and weakness, the Veteran's range of motion was just 10 degrees from normal during this period, and his symptoms were treated conservatively with over-the-counter pain medication and chiropractic treatment.  Moreover, even acknowledging that the Veteran's pain may at times have resulted in additional functional loss than that objectively demonstrated, especially during flare-ups, and even when such functional limitations are considered, the evidence does not reflect functional impairment comparable to forward flexion of the thoracolumbar spine less than 60 degrees; combined range of motion of the thoracolumbar spine less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  As discussed above, the Veteran's gait, posture, and range of motion were essentially normal, even with consideration of pain and other such factors, and the Board finds that the Veteran's rating of 10 percent adequately encompasses the Veteran's functional impairment.  Accordingly, the Veteran's disability picture does not meet or approximate the criteria described for a rating greater than 10 percent under the General Rating Formula based on limitation of motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202.  

Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 20 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  In this case, the evidence of record does not show that the Veteran had incapacitating episodes as defined by VA regulations during this period.  Although the Veteran indicated that he had flare-ups of back pain, there is no evidence from any of the Veteran's medical providers that bedrest was prescribed by a physician for treatment of his spine disability.  In this regard, the evidence shows that the Veteran's back condition was treated conservatively with over-the-counter pain medications and chiropractic treatment.

Period from July 19, 2011 to December 11, 2015

Based on a review of the evidence, the Board finds that the Veteran's low back disability does not support the assignment of an evaluation in excess of 20 percent for the period from July 19, 2011 to December 11, 2015.  

In order to warrant the next higher rating of 40 percent under the General Rating Formula, the evidence must show forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  

In this regard, on VA examination July 2011, the Veteran's forward flexion was 55 degrees and the combined range of motion of the thoracolumbar spine was 140 degrees.  Although the Board notes that after three repetitions, the Veteran's forward flexion decreased to 45 degrees and the combined range of motion of the thoracolumbar spine decreased to 115 degrees, these findings do not show that the Veteran's range of motion more closely approximated limitation to 30 degrees or less on forward flexion of the thoracolumbar spine.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Moreover, there was no evidence of ankylosis.  

As noted above, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  In this case, a higher rating based on these grounds is not warranted.  Despite the Veteran's complaints of pain, his flexion was noted to be, at its worst, 45 degrees, as seen during the July 2011 VA examination.  Moreover, although the July 2011 VA compensation examination did reveal additional functional impairment, including additional limitation of motion due to pain, such functional loss is already contemplated by the range of motion measurements set forth in the report.  

Furthermore, even acknowledging that the Veteran's pain may at times result in additional functional loss than that objectively demonstrated, especially during flare-ups, and even when such functional limitations are considered, the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent during this period.  In this regard, forward flexion was to 45 degrees after repetition in October 2006; to 60 degrees with pain in May 2013; and normal in July 2015.  Thus, at no time during this period, even considering evidence of pain, did the Veteran's forward flexion come close to approximating 30 degrees or less.  Therefore, even with consideration of pain and other such factors, the Board finds that the Veteran's rating of 20 percent during this period adequately encompasses the Veteran's functional impairment during flare-ups and with repeated use over time.  Accordingly, the Veteran's disability picture does not meet or approximate the criteria described for a rating greater than 20 percent under the General Rating Formula based on limitation of motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202.

Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 40 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  

Here, as the July 2011 VA examiner noted, the Veteran reported three incapacitating episodes a month, and 40 times a year.  However, the Board notes that this was reported to the examiner and transcribed into the examination findings.  There is no evidence to support that the Veteran was prescribed bed rest by a physician during this time, and there is no documentary evidence that the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 month period as is required for a 40 percent rating.  

Period from December 12, 2015

In order to warrant a rating higher than 40 percent under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  The evidence of record shows that the Veteran's low back disability is not characterized by ankylosis of the thoracolumbar spine, or of the entire spine, and therefore entitlement to a higher rating under the General Rating Formula is not warranted.  See December 2015 VA Examination Report (combined range of motion of the thoracolumbar spine was 110 degrees).

Additionally, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).  Thus, no higher rating is available due to functional loss.

To qualify for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Veteran's low back disability must result in incapacitating episodes having a total duration of at least 6 weeks during the past twelve months.  Here, again, there is no evidence to support that the Veteran was prescribed bed rest by a physician during this time, and there is no documentary evidence that the Veteran has had incapacitating episodes.  Moreover, during the December 2015 VA examination, the Veteran reported episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months.  Thus, even assuming, arguendo, that the Veteran had incapacitating episodes as defined by regulation during this period, they did not have a total duration of at least 6 weeks.  

Neurological Evaluations

For the entire period on appeal (i.e., from August 2006), the Board has considered whether separate ratings are warranted for any associated neurological abnormalities.  

As an initial matter, the Board notes that the Veteran is already separately service-connected for diabetic peripheral neuropathy of both lower extremities and that 10 percent ratings have been assigned for each lower extremity for mild incomplete paralysis of the sciatic nerve, effective from May 4, 2010.  Thus, for the period since May 4, 2010, assigning separate ratings for radiculopathy would constitute pyramiding, which is to be avoided.  See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

For the period prior to May 4, 2010, the December 2006 examiner provided a diagnosis of L4-L5 radiculopathy of the right lower extremity.  However, in the May 2014 decision, the Board denied entitlement to service connection for radiculopathy of the right lower extremity.  The Board found that service connection and a separate disability rating for radiculopathy of the right lower extremity as a manifestation of service-connected low back disability was not warranted because the most probative evidence indicated that such symptomatology was not related to the service-connected low back disability.  This issue is no longer on appeal because the Veteran expressly abandoned that issue in the April 2015 Joint Motion for Remand and the Court dismissed the appeal as to that issue in the April 2015 Order.

With regard to other neurological abnormalities, the Veteran has consistently denied any bowel or bladder issues, and the December 2015 VA examiner indicated that the Veteran had no other neurologic abnormalities related to his low back disability.  Accordingly, the Board finds that a separate rating is not warranted for any other objective neurological symptoms. 

Conclusion

The Veteran is competent to report his symptoms and credible in his belief that his back disability warrants higher ratings.  His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the extent of the back impairment based on objective data coupled with the lay complaints.  In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment of the Veteran's back.  Thus, while the Board acknowledges the Veteran's reports of back symptomatology, especially exacerbations of back pain, the evidence in this case shows that the ratings assigned appropriately compensate the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination.  See 38 C.F.R. §§ 4.40 and 4.4; DeLuca.

The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 10 percent disability rating prior to July 19, 2011, a 20 percent disability rating from July 19, 2011 to December 11, 2015, and a 40 percent disability rating thereafter.  See 38 C.F.R. § 4.7.  As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran.  The Board finds no provision upon which to assign a greater or separate rating.

For the foregoing reasons, the Board finds that the claim for higher ratings for a low back disability must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims for higher ratings, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Extraschedular Consideration

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  As an initial matter, the Board notes that in the April 2015 JMR the parties agreed that the Board erred in failing to provide an adequate statement of reasons and bases to support its finding that referral for an extraschedular rating was not warranted.  Specifically, the parties agreed that the Board did not adequately discuss symptomatology other than pain in determining that the Veteran's symptoms were contemplated by the rating criteria.  The JMR noted that the Veteran also reported flare-ups and the use of corrective shoes, orthotic inserts, a cane, and a crutch.  With the April 2015 JMR noted, the Board again finds that the symptoms of the Veteran's low back disability are adequately contemplated by the rating criteria and that there exists no basis for a referral for extraschedular consideration.  See 38 C.F.R. § 3.321(b)(1); Schafrath, 1 Vet. App. 589; see also Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008).

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Thun, supra.  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required.  Id. at 111; VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization.  38 C.F.R. § 3.321 (b)(1).

Turning to the first step of the Thun extraschedular analysis, the Board finds that all of the symptomatology and impairment caused by the Veteran's low back disability to be contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  

The evidence in this case does not show a disability picture so exceptional that the assigned schedular evaluations are inadequate.  The evidence indicates that the Veteran has a low back disability objectively shown as limitation of motion, along with pain on motion of the spine.  In addition, the medical and lay evidence indicates that as a result of his back disability, the Veteran uses assistive devices, such as a cane, has trouble sitting and standing for prolonged periods, and experiences trouble lifting objects.

After considering the evidence, the Board finds no basis to indicate that the Veteran's back disability presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of such criteria.  The Veteran's lumbar spine disability has manifested as limited range of motion, painful movement, and limitation of repetitive motion due to pain and during flare-ups.  The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes.  See Schafrath, 1 Vet. App. at 592 (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca at 206-07 (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell at 33-36 (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments).  The Veteran's difficulty with prolonged sitting, standing, and lifting, as well as his use of assistive devices, are also contemplated under 38 C.F.R. §§ 4.40 and 4.45 (pertaining to functional loss and the joints).  See, e.g., 38 C.F.R. § 4.45 ("interference with sitting, standing, and weight-bearing are related considerations").

All of the symptomatology and functional impairment described above result from the limitation of motion of the lumbar spine, to include as due to pain and during flare-ups, and all of the symptoms described by the Veteran are contemplated in the schedular rating assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion or tenderness or antalgic gait, or indirectly as orthopedic factors that limit motion and function.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca at 206-07.

Significantly, the Veteran may receive a higher rating if the service-connected low back disability worsens to such an extent as to meet the schedular criteria for such ratings.  The significance of the availability of potentially higher schedular ratings is that the Court's holding in Thun v. Peake, 22 Vet. App. 111,115 (2008) was that "[t]he threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available [italics added] schedular evaluations for that service-connected disability are inadequate..."  In other words, it is not solely the adequacy of the current schedular rating assigned which must be considered but the Rating Schedule as a whole as a vehicle for assigning the proper disability ratings.  Implicitly, the holding in Thun was that to limit consideration only to the criteria provided for the currently assigned rating would preclude, in determining whether the schedular criteria in the Rating Schedule were adequate, consideration of all criteria used in rating a particular disability.  Stated even more simply, the Court's case law has established that whether higher schedular ratings are "available" is a factor, albeit not the only factor, for consideration of whether the Rating Schedule is adequate for rating purposes (the first analytic step set forth in Thun v. Peake, 22 Vet. App. 111 (2008)).

Accordingly, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology as well as functional impairment due to the service-connected low back disability.  Thus, the Board cannot conclude that the schedular rating criteria are inadequate.  This is particularly true when, as here, higher schedular ratings are possible; particularly if the Veteran actually develops greater functional impairment in the future.  Consequently, referral of this case for consideration of an extraschedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

Finally, the Board recognizes that the issue of entitlement to a TDIU on an extraschedular basis prior to December 12, 2015, is being remanded.  That issue is being remanded for the sole purpose of referring the matter for a decision pursuant to 38 C.F.R. § 4.16 (b).  Such a decision by the Director is not evidence.  It is simply a decision that is adopted by the RO and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233 (2015).  Therefore, this is not the type of situation where the TDIU is being remanded due to an incomplete record regarding the effect on employability of the service-connected disabilities.  Johnson v. Shinseki, 26 Vet. App. 237, 247-48 (2013), reversed, on other grounds, 762 F.3d 1362 (Fed. Cir. 2014).  These matters are not intertwined.  Brambley v. Principi, 17 Vet. App. 20, 24 (2003).

III. TDIU

The Veteran also seeks entitlement to a TDIU.

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  

The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage).  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995).

Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination.  38 C.F.R. §§ 3.341, 4.16, 4.19.  

Here, since December 12, 2015, service connection is in effect for degenerative disc disease of the lumbar spine, rated as 40 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; right lower extremity diabetic peripheral neuropathy, rated as 10 percent disabling; left lower extremity diabetic peripheral neuropathy, rated as 10 percent disabling; scar, rated as 10 percent disabling; and scar, rated as noncompensable.  Thus, since December 12, 2015, the Veteran met the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a).

Accordingly, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  38 C.F.R. § 4.16(a).

The evidence shows that the Veteran last worked in a substantially gainful occupation in 2010 as a helicopter pilot.  The Veteran has a GED and flight training.  See Education Documents.

After a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, alone, rendered him unable to secure or follow a substantially gainful occupation since December 12, 2015.

As discussed above, the evidence of record shows that the Veteran's low back disability significantly affects his occupational functioning.  Specifically, the December 2015 VA examiner opined that that the Veteran's low back disability impacted his ability to work due to problems with prolonged standing and sitting.  See also May 2013 VA Examination Report ("Veteran's flare-ups of pain, stiffness, and weakness limit ability to lift, ambulate, and sit without frequent position changes.").

In addition to the evidence cited above regarding the occupational impact of the Veteran's low back disability, the record contains a July 2011 VA examination report, which shows that the Veteran's lower extremity peripheral neuropathy condition impacts his ability to work due to problems with lifting and carrying, lack of stamina, weakness, decreased strength, and pain.  The report also shows that the lower extremity peripheral neuropathy condition has moderate to severe effects on the performance of usual daily activities.   

Finally, the record contains evidence that the Veteran's pilot license was revoked in 2010 due to his diagnosis of diabetes and use of oral hypoglycemic medication.  See September 2010 Federal Aviation Administration Letter.  

As discussed above, entitlement to a TDIU is based on an individual's particular circumstances and VA must take into account the individual Veteran's education, training, and work history.  Rice, 22 Vet. App. at 452; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Here, the competent and probative evidence shows that the Veteran had to quit his job as a helicopter pilot (the field in which he is trained) due to his service-connected diabetes.  Additionally, VA examiners found that his service-connected low back and lower extremity disabilities significantly impact his ability to work due to decreased mobility and inability to sustain prolonged standing, sitting, or walking.  Indeed, he has not been employed since 2010.  

Thus, when considering this specific Veteran's disabilities in connection with his past employment history, and resolving reasonable doubt in the Veteran's favor, the evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation since December 12, 2015.  Accordingly, the Board finds that entitlement to a TDIU is warranted from December 12, 2015.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  As the evidence indicates that the Veteran might not have been able to work prior to that date, but he did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (b), the Board must refer the matter under § 4.16(b) for further processing.  See Wages v. McDonald, 27 Vet. App. 233 (2015).


ORDER

Prior to July 19, 2011, a rating in excess of 10 percent for a low back disability is denied.

From July 19, 2011 to December 11, 2015, a rating in excess of 20 percent for a low back disability is denied.

Since December 12, 2015, a rating in excess of 40 percent for a low back disability is denied.

Subject to the law and regulations governing the payment of monetary benefits, a total disability rating based on individual unemployability due to service-connected disability is granted from December 12, 2015.


REMAND

With regard to the issue of entitlement to a TDIU prior to December 12, 2015, remand is required for further development. 

For the period prior to December 12, 2015, the criteria for a TDIU under 38 C.F.R. § 4.16 (a) were not met.  However, even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. §4.16 (b). 

In the present case, as discussed above, there is evidence that suggests that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to December 12, 2015.  See 38 C.F.R. §§ 3.340, 4.16(b).  However, the Board does not have the authority to assign an extraschedular TDIU in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  Therefore, referral to the Director, Compensation Service, for consideration of entitlement to a TDIU prior to December 12, 2015 is warranted.  38 C.F.R. § 4.16 (b).

Accordingly, the case is REMANDED for the following action:

1.  Refer the matter to the Director, Compensation and Pension Service for extraschedular consideration as to whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability prior to December 12, 2015.  

2.  If the claim remains denied, return the matter to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
M. E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs