Citation Nr: 1806156 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-06 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for the service-connected lumbar spine disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected lumbar spine disability alone. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1994 to November 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which assigned a 20 percent rating for the lumbar spine disability, effective from June 2010. A November 2013 rating decision found clear and unmistakable error in the prior rating decision and assigned the 20 percent rating effective from May 28, 2010. The Veteran's service-connected disabilities are rated at a combined 100 percent disabling for the entire period on appeal. The Veteran has contended, in her February 2017 Form 21-8940, that she is unable to secure and maintain gainful employment due to her lumbar spine disability alone. Entitlement to TDIU was denied in an August 2017 rating decision. Though the Veteran has been evaluated at a combined 100 percent for the entire appeal period, the matter of TDIU is not moot because a TDIU based on a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent combined schedular evaluation is in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010) (A TDIU based o n a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent schedular evaluation is in effect.) The Veteran raised the matter of TDIU in conjunction with her appeal for an increased rating for the lumbar spine disability, and pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the matter of TDIU is a component of the claim for increased rating for the lumbar spine disability on appeal. Rice supports the inference that as long as an increased rating claim remains pending, the TDIU claim remains pending. Thus, although the Veteran has not, to this date, submitted a notice of disagreement with the August 2017 rating decision, the matter of entitlement to TDIU must still be considered in conjunction with the claim for increased compensation for the lumbar spine disability currently on appeal. In November 2015 and in October 2016, the Board remanded the claim on appeal for further evidentiary development, and the case is again before the Board for further appellate proceedings. In the November 2015 Board decision, the Board adjudicated the issue of entitlement to increased compensation for right lower extremity radiculopathy. This decision is final. In November 2015, the Board also remanded the matter regarding the evaluation for neurogenic bladder for the AOJ to issue a statement of the case. A March 2016 statement of the case addressed the issue of entitlement to increased compensation for neurogenic bladder associated with the lumbar spine disability, and the Veteran did not perfect this appeal. For these reasons, issues regarding the evaluation of right lower extremity radiculopathy and the evaluation of neurogenic bladder are not on appeal and are not before the Board at this time. Regarding the claim on appeal of entitlement to increased rating for the left lower extremity radiculopathy, the Board notes that in a November 2017 Informal Hearing Presentation, the Veteran's representative noted that in the Board's October 2016 remand directives, the Board asked the examiner to indicate the severity of any associated neurological manifestations. The representative contended, "The issue of lower extremity radiculopathy as noted in the BVA remand has been consistently intertwined with the claim for increase of the lumbar disc disease." However, the Board has not made a finding that the claim for increased compensation for left or right lower extremity radiculopathy is inextricably intertwined with the back disability. Indeed, the claim for entitlement to an increased evaluation for left lower extremity radiculopathy was separately adjudicated from the claim for entitlement to right lower extremity radiculopathy and from the appeal for increased compensation for the back disability, as follows: In a December 2013 rating decision, the AOJ granted entitlement to service connection and a separate rating for the left lower extremity radiculopathy, and assigned an effective date of May 17, 2007. Notice of this determination regarding the left lower extremity radiculopathy was provided in a December 2013 letter that was sent to the Veteran and her representative, along with a copy of her appellate rights. The Veteran and/or her representative did not submit a notice of disagreement against this determination. It follows that at the time of the November 2015 and October 2016 Board decisions, a matter regarding the left lower extremity radiculopathy evaluation was not on appeal and were not before the Board at those times. In a December 2016 rating decision, the AOJ granted an increased evaluation for left extremity sciatica or radiculopathy to 20 percent and assigned an effective date for the grant of this evaluation of March 18, 2015. Notice of this determination regarding the left lower extremity radiculopathy was provided in a January 2017 letter that was sent to the Veteran and her representative, along with a copy of her appellate rights. Then, in an August 2017 rating decision, the AOJ reduced the disability rating from 20 percent to 0 percent, effective on August 1, 2017. Notice of this determination regarding the left lower extremity radiculopathy was provided in an August 2017 letter that was sent to the Veteran and her representative, along with a copy of her appellate rights. A notice of disagreement has not been submitted with regard to December 2016 or August 2017 rating decisions. See 38 C.F.R. § 20.201. The Board acknowledges that the Veteran's representative argued in the November 2017 IHP that the effective date for the left extremity neurological impairment rating should match the right lower extremity. The Board notes that the effective dates for both extremities is May 17, 2007 and therefore the effective dates for the grant of a separate rating for left and right lower extremity radiculopathy do in fact match. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. FINDINGS OF FACT 1. For the entire appeal period, the evidence shows that the Veteran's overall lumbar spine disability is manifested by at worse forward flexion of the thoracolumbar spine limited to 30 degrees or less due to pain on motion and flare-ups; but, unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 6 weeks during a 12 month period due to lumbar spine disability, is not shown. 2. The Veteran's service-connected lumbar spine disability is rated as 40 percent disabling during the entire appeal period. 3. The Veteran is not rendered unable to secure or follow a substantially gainful occupation a result of her service-connected lumbar spine disability alone. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an increased disability rating of 40 percent for the lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243-5242 (2017). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Compliance with Prior Remand In September 2016, the Board remanded the case and directed the AOJ to obtain VA treatment records, and the AOJ did so. The Board also directed the AOJ to contact the Veteran and request that she submit or authorize the release of any outstanding records relevant to the lumbar spine, and the AOJ did so by letter in November 2016. To this date the Veteran has not provided information regarding any outstanding private treatment records, and the Veteran reported receiving VA care for her lumbar spine disability in the February 2017 Form 21-8940. The Board also directed the AOJ to schedule the Veteran for a VA examination to determine the severity of her lumbar spine disability. The Veteran was afforded a VA back examination in December 2016 and in July 2017, and the examiners together provided the requested information. The claim was readjudicated a later supplemental statement of the case. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board acknowledges the Veteran's contention that the September 2014 VA back examination is inadequate. In her November 2014 statement, she stated that the examiner told her that she could do better during each test, and she contended that the examiner did not perform testing sufficiently (e.g., he did not put enough resistance on her extremities to test for strength). She contended that this is an inconclusive examination . She also contended that he skipped a lot of steps even though he filled out all the responses. However, as discussed below, the Board is granted an increased rating of 40 percent for the entire period, and a rating greater than 40 percent would turn on whether there is ankylosis. Here, the September 2014 VA examiner noted whether there was ankylosis, and his finding of no ankylosis is supported by the range of motion tests and the Veteran's own statements, which show that she retained motion in her spine. As such, the September 2014 VA examiner provided enough information for rating purposes, and it is not rendered inadequate. The Veteran in this case has not referred to other deficiencies in either the duties to notify or assist with regard to the claim; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Analysis The Veteran contends that the rating for her lumbar spine disability during the appeal period does not accurately reflect the severity of her disability, and that her disability has gotten worse. The Veteran's lumbar spine disability is currently evaluated as 20 percent disabling for the entire appeal period, under 38 C.F.R. § 4.71a, Diagnostic Code 5243-5242. Evaluation of this disability under this diagnostic code is proper, as this diagnostic code contemplates the Veteran's lumbar spine disability diagnosis and symptoms, such as limitation of motion and incapacitating episodes. As noted above, the Veteran's right and left lower extremity radiculopathy and her neurogenic bladder impairment associated with her lumbar spine disability are not on appeal and are not before the Board at this time. The Veteran is competent to report her symptoms, and the Board finds that these reports as to her symptoms are credible. However, the identification of which symptoms may be attributed to the Veteran's lumbar spine disability is a medical matter beyond the knowledge of a lay person. As reflected in the certificate submitted in April 2011, the record does not indicate that the Veteran has medical expertise or training beyond the basic education of an emergency medical technician, and there is no indication that she has the medical expertise and training to render diagnoses and determinations as to etiology for her symptoms. At best, the Board finds that the Veteran's expertise in the medical field is limited to basic emergency treatment for symptoms. Thus, her contentions that all of her reported symptoms, to include any of her reported symptoms that she believes are due to her back medication, can be attributed to her service-connected lumbar spine disability are not competent evidence. Additionally, her contentions that all of her neurological symptoms are attributable to the lumbar spine disability, are also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, these opinions by the Veteran have no probative value. Similarly, the Veteran's contentions that she has objective neurological impairments associated with her lumbar spine disability (other than disabilities that are separately rated but are either not on appeal or is being remanded below), have no probative value. The Board acknowledges that the Veteran subjectively reported that she has multiple symptoms that are due to her lumbar spine pain medication. For instance, in her February 2017 Form 21-8940, the Veteran noted that the opiates that she takes for her back pain causes "marked drowsiness in addition to other side effects." Also, in a July 2016 statement, the Veteran contended that she has edema in the upper and lower extremities that are due to her lumbar spine medications. She has submitted general medical literature regarding the effects of opiates (though these articles do not pertain specifically to the Veteran's condition and medical history and therefore have no probative value as to the Veteran's specific medical history). For another example, the Veteran has contended that she has bilateral ankle symptoms that are attributable to her lumbar spine disability. For another example, the Veteran has reported that she has many neurological symptoms that are associated with her lumbar spine disability. For instance, in a May 2010 statement, the Veteran contended that she has bilateral upper extremity radiculopathy associated with her lumbar spine disability. However, in the Veteran's specific case, the medical evidence, to include the VA examination of record, shows that it is possible to differentiate which symptoms and functional impairments may be medically attributable to her lumbar spine disability during the appeal period, as opposed to multiple other causes and disabilities, both physical and mental, and multiple other disabilities for which she is also taking medication. For instance, the VA examinations and private treatment records in this case show the Veteran's symptoms, to include neurological symptoms, that are medically attributable to her lumbar spine disability. There is no competent medical evidence to show that all of the Veteran's reported symptoms may be medically attributable to her lumbar spine disability, and the Board will consider only the symptoms shown by the competent medical evidence as being medically attributable to her lumbar spine disability in rendering an evaluation for the same during the appeal period. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that the Veteran does have multiple disabilities for which the Veteran is separately service-connected as secondary to her lumbar spine disability, but these are not on appeal. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243. Under the General Formula, a 20 percent disability 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5235-5243. Here, there is no competent medical evidence of any objective neurological abnormality associated with the lumbar spine disability other than those that have already been separately rated and are either not on appeal or that the Board has remanded below. Thus, no separate rating is warranted for any other objective neurological abnormality. Note (5): 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 more 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, DC 5235-5243. In evaluating any musculoskeletal disability, to include on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, pain on movement, restricted or excess movement of the joint, stiffness, swelling, incoordination, instability of station, disturbance of locomotion, weakness, fatigue, and lack of endurance, to include during flare-ups and with repetitive use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995) (the Deluca factors). For the entire appeal period, the evidence shows that the Veteran's overall lumbar spine disability is manifested by at worse forward flexion of the thoracolumbar spine limited to 30 degrees or less due to pain on motion and frequent flare-ups of pain. Specifically, the Veteran's objective range of motion is limited to at worse 40 degrees on forward flexion in the May 2017 VA examination. On examination in September 2014, forward flexion was limited to 45 degrees with pain at 45 degrees, and on examination in December 2016, forward flexion was limited to 50 degrees. Pain has been noted on range of motion testing throughout the appeal period, to include on both active and passive range of motion. These objective measurements were taken when the Veteran was not experiencing a flare-up, and the Veteran has reported frequent flare-ups throughout the appeal period, and that these flare-ups cause further functional loss. For instance, in the December 2016 VA examination, the Veteran reported that her pain flares up, which frequently occurs and lasts about one day. During flare-ups, the Veteran reported that she has to limit housekeeping or cooking. She is also limited in limiting, bending, walking, and standing. She reported pain, weakness, and further loss of motion with flare-ups of pain. She denied discoordination with flare-ups of pain. The December 2016 VA examiner stated that the Veteran's reports of flare-ups were not specific enough to determine the actual range of motion during flare-ups or following repeated use over time. For another example, the Veteran reported in the May 2017 VA examination that during flare-ups, she is limited in sitting, standing, and walking. She stated that during flare-ups, she cannot stand more than five minutes, she can sit no more than an hour, and she cannot walk more than five minutes. She stated that she has to change positions due to her pain, which makes household duties and general activity around the house difficult. She stated that she cannot do prolonged walking, standing, or bending, but she did note that she was able to travel for two and half hours sitting in a car. On review, when considering the Veteran's ongoing reports of flare-ups and the impact of her flare-ups on her function and range of motion, and when considering the Veteran's reported Deluca factors such as stiffness and weakness, the Board finds that there is a question of whether a 20 percent rating or a 40 percent rating better contemplates her overall disability picture. Thus, the Board finds that the Veteran's lumbar spine range of motion more nearly approximates limitation of motion of forward flexion of the thoracolumbar spine 30 degrees or less, the criteria for a 40 percent rating are more nearly approximated, and an increased rating of 40 percent is warranted under the General Formula for the entire appeal period. 38 C.F.R. § 4.7. The Board acknowledges that the Veteran's range of motion can become limited, to include during flare-ups. For instance, the Veteran reported in a June 2010 statement that she cannot bend at times and her range of motion is becoming increasingly limited. However, there is no subjective report of the back being totally fixed and completely unable to bend, and the objectively medical evidence, to include the May 2017 VA examination, recurrently shows that there is no ankylosis during the appeal period. Indeed, at all times during the appeal period, the objective evidence shows that the Veteran has always retained some range of motion in her back. For these reasons, the criteria for a rating greater than 40 percent have not been met or more nearly approximated, and a rating greater than 40 percent is not warranted under the General Formula. The Board acknowledges that on VA examination in July 2010, the Veteran reported that she has no additional loss of motion during her flare-ups of pain, and the VA examiner noted that forward flexion was limited to 70 degrees, with pain at 70 degrees. However, the remaining evidence of record, specifically to include the medical records dating after July 2010, show symptoms of greater severity than shown on VA examination in July 2010. The Board finds that the evidence tends to indicate that these July 2010 findings was a temporary decrease in severity in the Veteran's symptoms during the appeal period, and that the Veteran's overall functional impairment resulting from the service-connected lumbar spine disability is consistent with the rating of 40 percent during the entire appeal period. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Next, when rating the lumbar spine disability based on incapacitating episodes, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, DC 5243. Here, the Board acknowledges that on VA examination in December 2016, the examiner noted that the Veteran has subjectively reported episodes of acute signs and symptoms due to her lumbar spine disability which required bed rest prescribed by a physician and treatment by a physician within a 12 month period. She noted that in the past 12 months, the Veteran reportedly had periods of bed rest having a total duration of at least four weeks but less than six weeks. The examiner explained that this finding is supported by medical history described by the Veteran only, without documentation. She stated that the Veteran reported that bed rest was ordered by Dr. J. W., and that he ordered up to five weeks of bed rest. The Board notes that the medical evidence from Dr. J. W., to include a September 2014 record, shows that he has provided work notes for the Veteran to be excused from work, which state that she is being treated for her back pain by him, but such evidence does not indicate that he prescribed her best rest and treatment by a physician for her lumbar spine disability. The Board also notes that the Veteran has reported that she is incapacitated due to other disabilities multiple times a year. For instance, in an April 2016 private treatment record from Dr. J. W., the Veteran noted that she is incapacitated up to three times a year due to her sinus disability, which is also treated by Dr. J. W. Even if the Veteran produces medical documentation dating during the appeal period to support a finding of periods of acute signs and symptoms due to lumbar spine disability alone that requires bed rest prescribed by a physician and treatment by a physician, there is no lay argument or medical evidence to indicate that she has had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months at any point during the appeal period. Therefore, a rating greater than 40 percent based on incapacitating episodes is not warranted. At no point during the appeal period have the criteria for ratings greater than those discussed above been met or approximated. The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that ratings greater than those discussed above are warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record in conjunction with her claim for increased rating for the lumbar spine disability. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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 record). The Board acknowledges the Veteran's reports of the side effects of her pain medication, which she has been prescribed for treatment of her lumbar spine disability. However, the schedular criteria for rating the lumbar spine disability, specifically DC 5243, specifically contemplates the effects of medication, as it contemplates symptoms that requires treatment by a physician, which includes medication. For this reason, a matter regarding entitlement to an extraschedular rating is not raised. McCarroll v. McDonald, No. 14-2345 (November 7, 2016). The matter of TDIU is addressed below. TDIU Total disability based on individual unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). For purposes of determining whether there is a single disability for schedular TDIU purposes, disabilities with the same etiology may be combined. Id. Here, the Veteran contends, in a February 2017 Form 21-8940, that she is unable to secure or follow employment due to her lumbar spine disability. As discussed in the Introduction above, the issue of entitlement to TDIU is not moot and is on appeal because TDIU based on a single disability is on appeal and before the Board, for purposes of determining whether entitlement to additional SMC benefits may arise. Notably, however, unlike 38 C.F.R. § 4.16(a), when determining whether the Veteran has independently ratable and distinct disabilities for purposes of SMC, the question of whether such disabilities arose from a common etiology is not relevant. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). For these reasons, the matter of TDIU is limited to the question of whether the Veteran's lumbar spine disability alone precludes employment. The Veteran's lumbar spine disability is rated as 40 percent disabling for the entire appeal period. Thus, the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met, as the Veteran's lumbar spine disability is not rated as 60 percent or more for the entire appeal period. 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 referred for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected lumbar spine disability. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is competent to report her education and work history, and the Board finds these reports are credible. The Veteran reported in her February 2017 Form 21-8940 that she completed four years of college. She also reported that she last worked in April 2016, doing administrative work, and she became too disabled to work in April 2016. She reported working full time during the remaining appeal period. She stated that her work functions while working were administrative and sitting was very painful and made her legs numb and her sciatic area burn. She stated that she missed many days of work due to her back pain and dysfunction prior to leaving this job. She essentially contends that she is unable to work because she has to take so much leave from for her back pain, and she had depleted her leave from her last job. On review, the Board acknowledges that the Veteran's service-connected lumbar spine disability impacts the Veteran's ability to work and perform work tasks, such as sitting. However, the assigned evaluation for this disability is intended to reflect such occupational impairment. See 38 C.F.R. § 4.10. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected lumbar spine disability alone precludes her from securing and following gainful occupation in which she has work experience and the education background, specifically to include sedentary administrative work in which she can take breaks from prolonged sitting. Indeed, the evidence shows that during the relevant period on appeal, that she is unable to secure and maintain employment due to a combination of her multiple physical and psychiatric disabilities, both service-connected and nonservice-connected. Additionally, the evidence shows that the Veteran took leave for her lumbar spine disability as well as other disabilities. For instance, the Veteran reported on VA psychiatric examination in August 2017 that when she was working, she had problems with absenteeism and was therefore not making quotas. The private treatment records and work slips from Dr. J. W., shows that the Veteran was absent from work due not only to her lumbar spine disability but also to multiple other disabilities, such as headaches, bilateral ankle disability, and urinary disability. The Board also notes that there is lay evidence, to include a December 2015 coworker's statement, reporting that the Veteran must take bathroom breaks throughout the day due to her urinary disability. In a December 2014 statement, the Veteran reported that at her job she has to use the restroom several times in an hour and had to get a doctor's note for her job due to this disability. Further, in the August 2017 VA psychiatric examination, the examiner noted that the Veteran's psychiatric disability results in occupational impairment due to symptoms including disturbances of motivation and mood and depressed mood. Also, in an August 2017 statement, the Veteran reported that she has daily panic attacks, and that she has had a sudden urge to drive off a cliff or a bridge. She also reported that she often feels "hijacked in her mind." Given this evidence and recurrent reports by the Veteran regarding the impact of her physical and psychiatric disabilities other than her lumbar spine disability, the Board finds that the Veteran is precluded from securing and maintaining employment due to a combination of her disabilities during the appeal period. On review, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected lumbar spine disability alone prevents her from securing and maintaining an occupation in which she has work experience and the educational background to perform. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For these reasons, the Board finds that the Veteran is not rendered unable to secure and follow a substantially gainful occupation by reason of her service-connected lumbar spine disability alone, and referral for consideration of entitlement to a TDIU on an extraschedular basis is not warranted. 38 C.F.R. §4.16(b). ORDER For the entire appeal period, entitlement to an increased disability rating of 40 percent for the lumbar spine disability is granted, subject to the law and regulations governing the payment of VA compensation benefits. Entitlement to TDIU is denied. ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs