Citation Nr: 1801476 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-24 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for residuals of a lower abdominal muscle or groin tear disability. 3. Entitlement to service connection for a left ear hearing loss. 4. Entitlement to an initial evaluation in excess of 40 percent for low back degenerative disc disease and spondylosis at L4- L5 and L5-S1, prior to August 11, 2015. 5. Entitlement to an evaluation in excess of 60 percent for low back degenerative disc disease and spondylosis at L4-L5 and L5-S, from August 11, 2105 forward. 6. Entitlement to an initial compensable evaluation for hypertension. 7. Entitlement to a total disability rating based individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Coast Guard from March 2003 to June 2003 and from December 2003 to July 2010. This matter is before the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During the course of the appeal an increased 40 percent rating was granted for the Veteran's low back disability in a July 2012 Statement of the Case (SOC). The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issues of entitlement to service connection for asthma, residuals of a lower abdominal muscle tear, left ear hearing loss and entitlement to TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran without good cause, failed to appear at a scheduled VA back examination in June 2017, and the VA examination was necessary to decide the issue of entitlement to an increased rating for low back degenerative disc disease and spondylosis. 2. Prior to August 11, 2015 the Veteran's degenerative disc disease and spondylosis of the low back was manifested by complaints of pain, difficulty lifting, kneeling, walking and bending, with limitation of forward flexion of the thoracolumbar spine to 30 degrees; there was no unfavorable ankylosis of the entire thoracolumbar spine, and/or incapacitating episodes as defined by VA. 3. From August 11, 2015 forward, the Veterans' degenerative disc disease and spondylosis of the low back was manifested by complaints of pain, difficulty lifting, kneeling, walking, bending and ongoing flare-ups with incapacitating episodes having duration of at least 6 weeks during the past 12 months, and not by unfavorable ankylosis of the entire spine. 3. For the entire period on appeal the Veteran's hypertension was manifested by diastolic pressure predominantly less than 100 and systolic pressure predominantly less than 160. CONCLUSIONS OF LAW 1. Prior to August 11, 2015 the criteria for an evaluation in excess of 40 percent for degenerative disc disease and spondylosis of the low back have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243(2017). 2. From August 11, 2015 forward, degenerative disc disease and spondylosis of the low back, was 60 percent disabling. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243(2017). 3. From August 11, 2015 forward the criteria for a rating in excess of 60 percent for degenerative disc disease and spondylosis of the low back have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243(2017). 4. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104 Diagnostic Code 7101(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veteran was scheduled for a VA examination in June 2017. The Veteran failed to appear at the June 2017 back examination, and has not presented good cause for the failure to appear. The Board finds that good cause has not been shown for the Veteran's failure to report for his scheduled examination. There is also no indication that the Veteran did not receive notice of the examination, and he has not requested the VA back examination be rescheduled. Given the AOJ actions and the Veteran's choice not to submit to the June 2017 VA examination, the Board finds the VA has no remaining duty with regard to a medical examination and opinion in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). The Board notes that the Veteran has not identified any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds that the appeal may be considered on the merits. II. Compliance with Prior Remand Most recently the case was before the Board in April 2017 and was remanded for additional development. Previously the case was remanded in November 2015. The Veteran was scheduled for a VA back examination in June 2017, for which he failed to attend, and failed to show good cause for his failure to report. Supplemental statements of the case (SSOC) were issued in October 2017 and November 2017. As such the Board finds there has been substantial compliance with the prior remand. III. Schedular Rating Disability evaluations are 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and here staged ratings are warranted as to the Veteran's low back disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). IV. Increased Rating The Veteran contends he is entitled to an increased rating for his service connected low back DDD and spondylosis. Additionally, the Veteran contends he is entitled to a compensable rating for his service-connected hypertension, and will be addressed below. The Veteran's low back disability is rated at 40 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243, intervertebral disc syndrome (IVDS) prior to August 11, 2015 and rated at 60 percent from August 11, 2015 forward. The Board will address ratings for the period prior to August 11,2015, first, as herein the Veteran is granted a 60 percent rating from this date forward, followed by the ratings for the period from August 11,2015 forward, applying all pertinent Diagnostic Codes. A. Low Back Prior to August 11, 2015 Prior to August 11, 2015, the Veteran's low back disability was rated at 40 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243, intervertebral disc syndrome. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, 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. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases 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. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a . Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Based on the evidence of record, the Board finds that the preponderance of the evidence is against finding that an increased rating in excess of 40 percent for the Veteran's low back disability is warranted during this period on appeal. At different times during this period on appeal the Veteran has stated his low back is manifested by ongoing pain, difficulty walking, lifting, kneeling and bending. The Veteran is competent to testify to such lay observable symptomatology, and these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his low back disability during the appeal. The Veteran was afforded a VA examination in September 2011. The examiner noted that the Veteran's low back DDD would preclude him from obtaining and maintaining employment in any physical type of labor including law enforcement. See September 2011 VA examination. The examiner noted the Veteran would be able to work in sedentary work, if he is allowed frequent breaks to stand and stretch. The Veteran reported he is unable to stand or sit for more than 30 minutes, and cannot run. The Veteran reported flare-ups twice a week lasting for the entire day. During flare-ups the Veteran is unable to bend over and needs assistance with dressing and basic care tasks. On range of motion testing forward flexion was to 40 degrees, with painful motion at 0 degrees. Extension was to 0 degrees, with painful motion at 0 degrees. Right lateral flexion was to 5 degrees, with painful motion at 0 degrees and left lateral flexion was to 10 degrees, with painful motion at 0 degrees. Right lateral rotation was to 5 degrees with painful motion at 0 degrees, and left lateral rotation was to 10 degrees with painful motion at 0 degrees. Repetitive use testing noted forward flexion to 30 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees and left lateral rotation to 10 degrees. Additional functional loss was noted including less movement than normal, weakened movement, pain on movement and interference with sitting, standing and weight bearing. Muscle spasms were present but did not result in abnormal gait or spinal contour. No muscle atrophy was noted. On the reflex examination reflexes of the knee and ankle were hypoactive. A sensory examination noted decreased sensation in the left upper anterior thigh, thigh/knee, lower leg/ankle and foot/toes. The straight leg test was positive on the left side. Moderate left lower extremity radiculopathy was noted. The Veteran had intervertebral disc syndrome (IVDS) and no incapacitating episodes over the past 12 months were noted. There is no evidence that the VA examiner was not competent or credible, and as the examination report was based on accurate facts and an objective examination of the Veteran, this is entitled to significant probative weight in determining the severity of the Veteran's low back disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295. VA treatment records have been associated with the claims file. September 2013 treatment records note chronic significant back pain, which has been limiting his mobility and activity level. See September 13, 2013 VA treatment records. The Veteran reported difficulty walking while shopping, and some weakness in his right leg when climbing ladders. MRI imaging noted moderate spinal canal stenosis at L3/L4 and L5/S1 disc bulge at the right neuroforamen. February 2013 treatment records note the Veteran was seen in the emergency room for back pain. See February 15, 2013 VA treatment record. Based on the lay and medical evidence of record, the Board finds that the Veteran's low back disability does not more nearly approximate the level of severity contemplated by an increased 50 percent rating, as at no point during the period on appeal has the evidence shown a 50 percent rating is warranted. The Board notes the Veteran's contentions regarding his ongoing back pain and limited mobility with difficulty walking, sitting and bending. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The September 2011 VA examination noted forward flexion to 30 degrees, and noted no ankylosis. Based on the evidence of record a 40 percent rating is warranted during this period. In considering, which disability evaluation shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Based on the evidence of record a 40 percent rating is warranted. An increased 50 percent rating is not warranted. In order to warrant a higher 50 percent rating, there must be unfavorable ankylosis of the entire thoracolumbar spine. There has been no indication of ankylosis of the entire thoracolumbar spine at any point during the period on appeal. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the Veteran has reported flare-ups at times and the VA examiner specifically considered loss of motion in repetition use on the range of motion testing as noted above. Consequently, a higher rating is not warranted on this basis. As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. However, there is no evidence of incapacitating episodes as contemplated by the regulation, and neither the lay or medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for intervertebral disc syndrome, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted during this period. As to a separate rating for associated objective neurological abnormalities the Board notes the Veteran is currently service-connected for left lower extremity radiculopathy rated as noncompensable prior to September 6, 2011 and rated as 20 percent disabling from September 6, 2011 forward. In addition, the Veteran is service-connected for right lower extremity radiculopathy rated as 40 percent disabling effective August 11, 2015. Accordingly, a separate evaluation for neurological manifestations has been granted for the period on appeal, and an additional rating for neurological abnormalities is not warranted. Additionally, the Board notes that the Veteran has not raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 40 percent for the Veteran's service-connected low back disability during this period. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. B. Low Back from August 11, 2015 forward Here, the Board finds a staged rating as warranted. A 60 percent rating for the Veteran's low back disability is warranted from August 11, 2105 forward, the date the VA examination showed entitlement an increased 60 percent rating. As granted herein, the Veteran's low back disability has been assigned a 60 percent rating under 38 C.F.R. 4.71a, Diagnostic Code § 5243, intervertebral disc syndrome under the General Rating Formula for Disease and Injuries of the Spine. Based on the evidence of record, the Board finds that the preponderance of the evidence is against finding that an increased rating in excess of 60 percent for the Veteran's low back disability is warranted during this period on appeal. At different times during the appeal the Veteran has stated his low back disability is manifested by ongoing pain, difficulty walking, lifting, bending and increased flare-ups warranting bed rest. The Veteran is competent to testify to such lay observable symptomatology, and these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his low back disability during this period on appeal. The Veteran was afforded a VA examination in August 2015. The Veteran reported worsening of his low back with constant pain, stiffness and loss of feeling and pain in his left leg. See August 2015 VA examination. During flare-ups the Veteran reported difficulty getting out of bed, dressing and putting on his shoes by himself. Range of motion testing was forward flexion to 50 degrees, with painful motion at 50 degrees and extension to 5 degrees, with painful motion at 5 degrees. Right lateral flexion was to 20 degrees, with painful motion at 20 degrees, left lateral flexion to 20 degrees, with painful motion at 20 degrees. Right lateral rotation was to 30 degrees or greater with pain at 30 degrees or greater, and left lateral rotation was to 30 degrees or greater, with pain at 30 degrees or greater. The Veteran was able to perform repetitive use testing without any additional loss of range of motion. Functional loss was noted including less movement than normal, pain on movement, interference with sitting, standing and weight bearing. Guarding or muscle spasms of the thoracolumbar spine were noted with abnormal spinal contour. Muscle strength testing was normal, with no muscle atrophy. A reflex and sensory examination was normal. A right leg straight leg test was positive and a left leg straight leg test was negative. Moderate pain and severe numbness was noted in the right lower extremity with involvement of the L4/L5/S1/S2/S3. The examiner noted the left lower extremity radiculopathy was asymptomatic. Severe right lower extremity radiculopathy was also noted. IVDS was noted with incapacitating episodes in the past 12 months that required prescribed bed rest and treatment by a physician for at least 6 weeks. There is no evidence that the VA examiner was not competent or credible, and as the examination report was based on accurate facts and an objective examination of the Veteran, this is entitled to significant probative weight in determining the severity of the Veteran's low back disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295. Next, the Veteran was afforded a VA examination in October 2016. The examiner noted DDD and spondylosis at L4-5 and L5-S1 of the lumbar spine. See October 2016 VA examination. The examiner noted the Veteran has developed IVDS which is at least as likely as not a progress of his lumbar disc disease. The Veteran reported that his condition has worsened recently. Flare-ups were noted with numbness in his legs, and being unable to stand, with loss of muscle control. The Veteran reported he is unable to sit, stand and walk at times. Range of motion testing noted forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees and left lateral rotation to 15 degrees. The examiner noted that pain causes function loss, and there was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing without an additional loss of range of motion. Pain, weakness and lack of endurance limit functional ability with repeated use over time. Muscle guarding not resulting in abnormal gait or abnormal spinal contour was noted. Muscle strength testing was normal, and no muscle atrophy was noted. A reflex and sensory examination was normal. Bilateral straight leg raising test was positive. Bilateral radiculopathy was noted with severe intermittent pain, mild paresthesia and mild numbness with involvement of L4/L5/S1/S2/S3 nerve roots. Moderate bilateral radiculopathy was noted. No ankylosis of the spine was found. The Veteran did not have any other neurological abnormalities including bowel or bladder problems. IVDS was noted with no episodes of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician in the past 12 months. The examiner noted the Veteran's thoracolumbar spine impacts his ability to work and perform activities requiring full or repetitive bending and lifting and manipulation of objects requiring force. The Veteran is also unable to stand or lift for long periods of time. The Board notes the October 2016 VA examination had some shortcomings, as the examiner failed to fully address the Veteran's lay statements regarding his worsening symptoms and flare-ups. However, the Veteran failed to attend the June 2017 VA examination. As the Veteran failed to attend the scheduled VA examination, the case should be decided on the record. The Veteran was scheduled for a VA back examination in June 2017. The Veteran failed to appear at the June 2017 examination, and has not presented good cause for the failure to appear. The Board finds that good cause has not been shown for the Veteran's failure to report for his scheduled examination. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b) (2017). Here the Veteran's claim of entitlement to an increased evaluation for his low back disability is a claim for an increase. Thus, failure to report for a VA examination scheduled in conjunction with his claim warrants specific action on the part of the rater. That is, 38 C.F.R. § 3.655 unambiguously reads that such a claim shall be denied when the Veteran fails to report for an examination scheduled in conjunction with his claim for an increase. As noted above, the Veteran has not provided any reason for his failure to report. That is, there has been no showing of good cause. Thus, the totality of the evidence leads the Board to find that the Veteran has not shown good cause for his failure to report to the June 2017 VA examination. The Board notes the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Board. App. 190 (1991). However, the Veteran did appear and was examined as to his low back during the period of the appeal for an increased rating, and the Board did consider the results of that examination. Based on the lay and medical evidence of record, the Board finds that the Veteran's low back disability does not more nearly approximate the level of severity contemplated by an increased 100 percent rating, as at no point during the period on appeal has the evidence shown a 100 percent rating is warranted. The Board notes the Veteran's contentions regarding his ongoing back pain and limited mobility with difficulty walking, sitting, bending and ongoing flare-ups. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The August 2015 VA examination noted IVDS with incapacitating episodes in the past 12 months that required prescribed bed rest and treatment by a physician for at least 6 weeks. The Board notes that the October 2016 VA examination noted no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. However, as noted above there were some shortcomings in this VA examination as the examiner failed to consider the Veteran's lay statements regarding flare-ups and did not offer any real explanation for noting the absence of incapacitating episodes when the August 2015 VA examination had noted incapacitating episodes of IVDS in the past 12 months. As such based on the evidence of record the Board finds a 60 percent rating, but no higher is warranted for this period. In considering, which disability evaluation shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Based on the evidence of record a 60 percent rating is warranted for this period. As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. Here, there is evidence of incapacitating episodes as contemplated by the regulation and the lay and medical evidence suggests that there has been physician prescribed bed rest. In light of the evidence demonstrating episodes requiring bed rest prescribed by a physician and treatment by a physician for intervertebral disc syndrome, of incapacitating episodes of at least 6 weeks during the past 12 months, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is warranted. The Board notes that a 60 percent rating is the maximum available under Diagnostic Code 5243. As no higher schedular rating is available, an increased schedular rating is not warranted. AB v. Brown, 6 Vet. App. 35, 38 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). An increased 100 percent rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. In order to warrant a higher 100 percent rating, there must be unfavorable ankylosis of the entire spine. There has been no indication of ankylosis of the entire spine at any point during the appeal. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the Veteran has reported flare-ups at times and the VA examiners specifically found that repetition on the range of motion testing at times did result in additional loss of function or range of motion. However, even taking this into consideration there is no evidence of ankylosis and consequently, a higher rating is not warranted on this basis. As to a separate rating for associated objective neurological abnormalities the Board notes the Veteran is currently service-connected for left lower extremity radiculopathy rated as noncompensable prior to September 6, 2011 and rated as 20 percent disabling from September 6, 2011 forward and rated as noncompensable from August 11, 2015 forward. In addition, the Veteran is service-connected for right lower extremity radiculopathy rated as 40 percent disabling effective August 11, 2015. Accordingly, a separate evaluation for neurological manifestations has been granted for the period on appeal, and an additional rating for neurological abnormalities is note warranted. Additionally, the Board notes that the Veteran has not raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 60 percent for the Veteran's service-connected low back disability during this period. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. C. Hypertension The Veteran contends he is entitled to a compensable evaluation for service-connected hypertension. The Veteran's hypertension is rated as noncompensable under Diagnostic Code 7101. All blood pressure measurements will be expressed in units of millimeters of mercury (mmHg). Pursuant to Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medications for control. A higher 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) following Diagnostic Code 7101 provides that the term "hypertension" means the diastolic blood pressure is predominantly 90 millimeters or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. Note (2) provides that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it, rather than by a separate evaluation. Note (3) provides that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7101, Notes. Based on the evidence of record, the Board finds that the preponderance of the evidence is against finding that an increased compensable rating for the Veteran's hypertension is warranted during the period on appeal. At different times during the appeal the Veteran has stated that his hypertension is manifested by need to take medication and increased blood pressure readings. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his hypertension during the appeal. The Veteran was afforded a VA examination in September 2011. The examiner noted a diagnosis of hypertension in 2006. The Veteran was previously on medication for hypertension but had not been taking the medication for the past year. Blood pressure readings were 128/94, 133/96 and 143/94. The Board finds that the VA examiner was competent and credible, and as the examination report was based on accurate facts, consideration of the Veteran's subjective symptoms, and an objective examination of the Veteran, this is entitled to significant probative weight in determining the severity of the Veteran's hypertension during the course of the appeal. Nieves-Rodriguez, 22 Vet. App. 295. VA treatment records have been associated with the claims file. Treatment records in May 2012 note the Veteran was started on hypertension medication. See May 21, 2012 VA treatment record. March 2013 treatment records note a blood pressure reading of 133/89. See March 25, 2013 VA treatment record. September 2013 VA treatment records note the Veteran continued to be prescribed hydrochlorothiazide for blood pressure. See September 13, 2013 VA treatment records. May 2104 treatment records note the Veteran was restarting hypertension medication and had a blood pressure reading of 124/87. See May 14, 2014 VA treatment records. VA treatment records indicate at times during the appeal period the Veteran was on medication for hypertension but this was not consistent and not continuous. Based on the lay and medical evidence of record, the Board finds that he Veteran's hypertension did not more nearly approximate the level of severity contemplated by a compensable rating. The Board notes the Veteran's contentions regarding his worsening blood pressure and use of medication at points during the appeal period. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The September 2011 VA examination noted blood pressure readings of 128/94, 133/96 and 143/94. VA treatment records note blood pressure readings ranging from 124/87 to 133/89. Based on the evidence of record a 10 percent rating is not warranted. A 10 percent rating is not warranted as the predominance of the Veteran's diastolic readings were under 100, and the predominance of the Veteran's systolic readings were under 160. Further, while VA treatment records note the Veteran was at times during the appeal period prescribed medication for his hypertension there is no indication this required continued medication for control, or a history of diastolic pressure predominantly of 100 or more. As a result a compensable rating is not warranted. Additionally, the Board notes that the Veteran has not raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet.App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a compensable rating for the Veteran's service-connected hypertension. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. ORDER Entitlement to a rating in excess of 40 percent prior to August 11, 2015 for low back degenerative disc disease with spondylosis is denied. Entitlement to a 60 percent rating for low back degenerative disc disease with spondylosis, effective August 11, 2015 is granted. Entitlement to a rating in excess of 60 percent from August 11, 2015 forward, for low back degenerative disc disease with spondylosis, is denied. Entitlement to a compensable evaluation for hypertension is denied. REMAND The Veteran contends he is entitled to service connection for asthma, residuals of a lower abdominal muscle or groin tear injury, left ear hearing loss and TDIU. The Board finds a remand is warranted for additional development. Asthma, Residuals of Lower Abdominal Muscle Injury & Left Ear Hearing Loss First, VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159. "Relevant records" to be considered to determine a veteran's eligibility for compensation benefits are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran has consistently reported that he received treatment in service for asthma and an abdominal injury. While a portion of the Veteran's service treatment records from August 2008 to January 2010 are of record, the entirety of the Veteran's service treatment records are not of record, and do not appear to have been requested. As it appears there may be outstanding service treatment records pertinent to the Veteran's service connection claims for asthma, residuals of a lower abdominal muscle injury and left ear hearing loss the Board finds that a remand is necessary to obtain these records. TDIU Next, as to TDIU in May 2105 treatment records the Veteran reported he is off on Fridays from work. See May 19, 2015 VA treatment records. The Veteran and his former representative noted that while the Veteran has been employed at times during the period on appeal his employment has been marginal and not substantially gainful. See December 2015 Appeal to Board of Veterans' Appeals VA Form 9. However, there has been no additional development as to the Veteran's claims of marginal employment. Of record is an August 2013 Application for Increased Compensation Based on Unemployability which notes periods reflecting the Veteran periodically began and ended periods of employment from July 2010 to September 2012, which may not have been substantial gainful employment. While the record reflects that the Veteran has been employed at various points during the period on appeal, it is unclear whether this employment has constituted substantially gainful employment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Marginal employment is defined as employment where the Veteran's annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop. Id. The Board finds a remand is necessary to determine whether the Veteran has been engaged in substantially gainful employment prior to July 29, 2015. Additional development is needed to address the Veteran's periods of employment prior to this date, why he left the respective jobs and if any reasonable accommodations were given by the employer. Additionally, the Board finds the claim for TDIU is inextricably intertwined with the Veteran's pending claims for service connection, as the resolution of these claims might have bearing upon such. The appropriate remedy where pending claims are inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the electronic case file any outstanding medical records. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. Request from the appropriate source all outstanding service treatment records to include from March 2003 through July 2010. All actions to obtain records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 3. The AOJ should provide notice to the Veteran and request he provide additional information as to his periods of employment prior to July 29, 2015, noting periods work, why he left the jobs, earnings at each job, and what if any accommodations were provided by the employer. 4.Thereafter, readjudicate the issues on appeal, and take any additional development warranted. If the determination remains unfavorable to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matters 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. §§ 5109B, 7112 (West 2012). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs