Citation Nr: 18149959 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-19 756 DATE: November 14, 2018 ORDER Entitlement to an increased evaluation in excess of 10 percent for a lumbar spine compression fracture disability prior to March 7, 2012, and in excess of 40 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 7, 2012 is denied. FINDINGS OF FACT 1. For the period prior to March 7, 2012, lumbar spine compression fracture is manifested by forward flexion of the thoracolumbar spine more than 60 degrees but not greater than 85 degrees; there was no 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. There was neither ankylosis nor incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, nor neurological manifestations not accounted for in other disabilities. 2. For the period from March 7, 2012 forward, lumbar spine compression fracture is manifested by forward flexion of the thoracolumbar spine not greater than 30 degrees; there was neither ankylosis nor incapacitating episodes having a total duration of at least 6 weeks, nor neurological manifestations not accounted for in other disabilities. 3. Prior to March 7, 2012, the evidence of record does not show that the Veteran’s service-connected disabilities alone preclude him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for a lumbar spine compression fracture disability for the period prior to March 7, 2012, have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2017). 2. The criteria for an increased rating in excess of 40 percent for a lumbar spine compression fracture disability for the period from March 7, 2012, forward have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2017). 3. The criteria for entitlement to a TDIU prior to March 7, 2012 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an evaluation in excess of 10 percent for his lumbar spine disability. By way of background, in an April 2013 rating decision, the Veteran’s lumbar spine disability was increased to 40 percent disabling, effective March 7, 2012. Further, in a November 2015 rating decision, entitlement to a total disability rating for individual unemployability was granted effective May 20, 2014, and then in a July 2018 rating decision, the effective date of the TDIU grant was shifted earlier to March 7, 2012. 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. In May 2015 and October 2017, the Board remanded the issues of the Veteran’s service-connected lumbar spine compression fracture disability, along with TDIU. The directed examinations and opinions having been accomplished, the issues are again before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, TDIU is part of this claim and will be discussed below. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of SMC is not inferred by the record, and as such will not be discussed. The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in March 2015; a transcript of that hearing is associated with the claims file. Because that first VLJ left the Board prior to adjudication of the claim, the Veteran was offered a second hearing with the undersigned VLJ in January 2017, and a transcript of that hearing is also associated with the claims file. 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. Veterans Claims Assistance Act of 2000 (VCAA) 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. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; 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). Increased Schedular Ratings for Lumbar Spine Compression Fracture Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. 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 assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Lumbar Spine Compression Fracture Disability – Legal Standards The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5235, covering vertebral fracture of the spine. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, 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. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also 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 (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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 the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2017). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. When rated 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 the Veteran has competently and credibly reported that during flare-ups of pain, his pain sometimes “kills” him, and he must sometimes rest. However, there is no indication in the record that the Veteran has had signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician at any point during the appeal period. Therefore, a rating based on incapacitating episodes is not warranted. Lumbar Spine Compression Fracture Disability – Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected L1 compression fracture of the lumbar spine. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations he endures on a daily basis, per his lay statements, and his January 2017 hearing testimony. The Veteran filed a claim for an increased rating on March 26, 2010. As such, the Board will focus on the disability level of his lumbar spine compression fracture from one year immediately preceding the claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran received a VA examination for his lumbar spine in May 2010. The examiner noted the Veteran’s statements of low back pain, radiation of the pain to the left with numbness of the left foot. The Veteran was able to walk without any assistive device. The Veteran stated he did not have flare-ups, but did have pain on motion of his lower back with periodic spasms. The examiner considered the sensory examination to be normal to pain, temperature, and touch. No incapacitating episodes were noted in the past 12 months. X-rays showed the original compression fracture at L1 of the lumbar spine. Range of motion testing showed active forward flexion to be from 0 to 80 degrees, with extension from 0 to 30 degrees. Left lateral flexion is 0 to 38 degrees, with left lateral rotation being from 0 to 32 degrees. Right lateral flexion is from 0 to 38 degrees, with right lateral rotation from 0 to 30 degrees. Pain was noted in range of motion testing. In terms of functional impact, the Veteran stated he was unemployed and could not lift over 20 pounds because of his back. In March 2012, the Veteran received a comprehensive physical examination as part of his application for Social Security disability benefits. Part of this examination included an evaluation of the Veteran’s lumbar spine by a physician specializing in internal medicine. This examiner noted lumbar spine flexion limited to 30 degrees and extension limited to 10 degrees. Lateral flexion and rotation were “full” bilaterally, if done slowly. The examination report did not define what “full” meant in the context of range of motion for lateral flexion and rotation. The examiner reported that no neurological symptoms were noted in the lower or upper extremities. No sensory deficit was noted. Muscle strength was 5 on a scale of 5. X-rays taken on this day showed an old compression fracture of L1, with well-maintained disc spaces and straightening. No arthritis for the lumbar back was indicated. The Veteran received another physical examination pertinent to his claim with Social Security in October 2012. Here, the physician, a neurologist, noted a history of low back pain and a previous fracture at L1, with pain noted. The examiner indicated that the pain increase with moving, bending, lifting, twisting, squatting, standing, and walking. Range of motion measurements showed “generalized mild decreased range of motion of 5 to 10 degrees in all modalities with mild local tenderness.” This non-VA examination report did not indicate what range of motion measurements were considered normal. The Veteran received a VA examination in April 2013. The examiner noted the history of the compression fracture in the lumbar spine at L1 and flare-ups that lasted for 3 to 4 days. No valid measures of flexion and extension could be obtained. The examiner noted that the Veteran could do straight leg raises to 30 to 40 degrees, but when asked to do forward flexion, the Veteran did not produce any motion, either at the hips or the lumbar spine. The examiner noted that the American Medical Association’s guide for such examinations denotes that when a measure of lumbar flexion is not accompanied by sacral motion within 10 percent of the measure of a straight leg raise, then the test of flexion and/or extension is invalid. Right and left lateral flexion and rotation were all to 30 degrees, with no changes after repetitive testing. There was no localized tenderness, guarding, or muscle spasm. The Veteran reported the impact of the flare-ups as requiring bed rest, and the examiner noted that no physician, VA or private, has advised the Veteran he must stay in bed. The Veteran related his most recent episode of back pain occurred the weekend prior to this examination when he was changing the brakes on his car. The examiner related he was unable to assess functional impact of the Veteran’s lumbar disability because he could not obtain reliable measurements of flexion and extension. The Veteran received another VA examination in October 2015. The examiner noted a diagnosis of degenerative arthritis along with the noted history of the L1 compression fracture of the lumbar spine. This examiner also noted flare-ups with non-specific patterns that may involve a “50 percent increased limitation” of physical activity one or two times a month. Range of motion testing showed active forward flexion to be from 0 to 60 degrees, with extension from 0 to 20 degrees. Left lateral flexion is 0 to 20 degrees, with left lateral rotation being from 0 to 20 degrees. Right lateral flexion is from 0 to 20 degrees, with right lateral rotation from 0 to 20 degrees. Pain was noted on forward flexion with no pain with weight bearing. Repetitive use testing resulted in no additional loss of function or range of motion. There was no guarding or muscle spasm of the lumbar spine noted, no muscle atrophy, no radicular pain, or any other signs or symptoms due to radiculopathy, no ankylosis, and no intervertebral disease of the lumbar spine. Muscle strength testing was 5 on a scale to 5. There were no neurologic abnormalities related to the lumbar spine, such as bowel or bladder problems. The examiner noted the Veteran’s functional impact from his current back condition but also stated that the Veteran was able to perform sedentary work and can sit in a chair without any pain medications. The examiner noted the Veteran used a cane to assist in ambulation. The Veteran’s most recent VA examination for his lumbar spine was in November 2017. The examiner rendered diagnoses of a lumbar vertebral fracture and neuralgia. Range of motion testing showed extension from 0 to 20 degrees, with the Veteran refusing any attempt to move in forward flexion. Left lateral flexion is 0 to 20 degrees, with left lateral rotation being from 0 to 30 degrees. Right lateral flexion is from 0 to 20 degrees, with right lateral rotation from 0 to 30 degrees. The examiner indicated the examination was being performed during a flare-up but no changes in range of motion or functional loss were noted. No muscle atrophy was noted. The straight leg raising test was negative. There was no ankylosis of the spine, no neurological abnormalities, or any other findings related to the back condition. The examiner indicated there was no pain noted on this examination, to include no evidence of painful motion, functional loss due to pain, excess fatigability, weakness, or any additional disability during a flare-up. There was no report of any incapacitating episodes in the last 12 months. As part of this examination for his lumbar back, the Veteran was also evaluated with a VA peripheral nerves examination, also in November 2017. The examiner noted complaints of foot pain, and the first symptoms noted in the Veteran’s medical records were in March 2012 when EMG nerve conduction studies were indeterminant for any etiology related to the peripheral nerves of the lower extremities or related areas. This examiner also noted the March 2014 neurology evaluation that documented symptoms of neuropathic pain that were likely alcoholic in etiology. This examiner also noted that the Veteran made no complaints about any peripheral nerve condition to his regular VA primary care physician over the previous two years. This examiner noted that L1 nerves innervate no farther than the proximal anterior thigh, and do not innervate the feet. For the period prior to March 7, 2012, the Board finds the relevant rating criteria are met as to a rating of 10 percent, but no higher. An evaluation of 10 percent may be granted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. The Board notes an evaluation of 10 percent for this period, but no higher, is based upon the combined range of motion and the lowest forward flexion of 80 degrees and combined range of motion of 218 degrees measured during this period, at the May 2010 VA examination. A higher evaluation of 20 percent is not warranted unless there is 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 is not greater than 120 degrees; or, unless there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or, unless there are incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The pertinent examination and treatment notes showed a normal gait and posture and no incapacitating episodes noted. For the period from March 7, 2012 forward, the Board finds the relevant rating criteria are met as to a rating of 40 percent, but no higher. A 40 percent evaluation for compression fracture of L1 of the lumbar spine is based on forward flexion of the thoracolumbar spine 30 degrees or less, recorded during the March 2012 Social Security examination. No incapacitating episodes were noted in this period. A higher evaluation of 50 percent is not warranted unless the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. For this Veteran, ankylosis of any kind has never been shown, and IVDS or incapacitating episodes have never been shown on any medical examination pertinent to the lumbar back during any period on appeal. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, the Board notes it has considered 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 (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Each examiner noted above recorded the Veteran’s statements of flare-ups and their impact on the Veteran’s occupational and social functioning in their assessment of the lumbar back disability. The Veteran is already receiving the maximum allowable schedular rating based on limitation of motion, from March 7, 2012 forward, the effective date of his 40 percent rating. If a musculoskeletal disability is currently evaluated at the highest schedular evaluation available based upon limitation of motion, then a higher rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted. See Johnston v. Brown, 10 Vet. App. 80 (1997) (limiting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App, 32, 36 (2011)). With regard to the rating issue involving the lumbar back, the Board acknowledges the Court recently 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. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The November 2017 medical examination discussed above did not completely demonstrate range of motion testing for the spine in forward flexion, repetitive motion, and weight-bearing situations. In short, this examination could be deemed inadequate under Correia in a strict interpretation. That notwithstanding, in the present decision, the Board is denying a disability rating in excess of 40 percent because ankylosis is not demonstrated pursuant to the rating criteria for diagnostic code 5242 as described above. 38 C.F.R. § 4.71a, General Rating Formula For Diseases and Injuries of the Spine. The Veteran is already receiving the maximum allowable schedular rating based on limitation of motion, from March 7, 2012 forward, the effective date of his 40 percent rating. Thus, a remand solely for the purpose of obtaining active and passive range of motion of the lumbar spine would serve no useful purpose. In other words, the requirements of the Correia holding are inconsequential in this case, and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. Additionally, while a back disability may be rated under the IVDS criteria at 38 C.F.R. § 4.71a, the Veteran’s lumbar back disability does not warrant a rating under this criteria for any period. The medical records do not show a diagnosis of IVDS and the Veteran does not allege any incapacitating episodes due to IVDS as defined in the criteria described earlier. The Veteran does report that he rests himself when necessary for symptomatic pain, along with prescription medication, but the record does not reflect that any physician prescribed bedrest, and no examination noted periods of incapacitation as described in the criteria. Therefore, an alternative rating under the IVDS criteria is not supported by the record. The Board has also considered possible neurological or radicular disorders, as prescribed in the October 2017 Board remand for this appeal. Here, the Veteran received a VA peripheral nerves examination in November 2017, along with his lumbar spine examination, and the VA examiner found no currently diagnosed neurological or radicular condition from his service-connected L1 lumbar spine compression fracture. Continuing, this VA examiner reviewed the Veteran’s entire claims file and noted there has never been a definitive diagnosis of neuropathy of lumbar etiology or radiculitis of the Veteran. The examiner’s rationale was that the L1 nerves innervate no farther than the posterior proximal anterior thigh and do not innervate the feet. The Veteran had noted pain in his feet in the January 2017 hearing before the undersigned VLJ, but he denied parasthesia elsewhere in the lower extremities. There is no imaging that indicates stenosis anywhere in the spine, a finding that is inconsistent with radiculopathy. Therefore, an alternative or additional rating under neurological or radicular criteria is not supported by the record. Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for compression fracture of the lumbar back prior to March 7, 2012, and in excess of 40 percent from March 7, 2012 forward. See 38 C.F.R. § 4.71(a), Diagnostic Code 5235; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s lumbar back disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart, 21 Vet. App. at 505. TDIU Prior to March 7, 2012 The Veteran has been granted a TDIU, effective from March 7, 2012 forward. However, the Veteran has asserted to VA that he has been unable to work since the end of 2008, when he retired from full time employment, and asserts that his service-connected disabilities, primarily his lumbar spine and depression disabilities, have kept him from working. As such, the Veteran is seeking TDIU for the period prior to March 7, 2012. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master degree in education and his part-time work as a tutor). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10. In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (Court) has indicated that, in essence, the unemployability question, that is, the veteran’s ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Schedular TDIU A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the period prior to March 7, 2012, the Veteran is service connected for a depressive disorder with a 30 percent evaluation from March 29, 2010; compression fracture of L1 of the lumbar spine, with an evaluation of 10 percent from June 27, 1986; left patella fracture, noncompensable prior to March 29, 2010 and with a 10 percent evaluation thereafter; tinnitus with an evaluation of 10 percent from March 29, 2010; a noncompensable evaluation for bilateral hearing loss, and a noncompensable evaluation for a deviated nasal septum. The Veteran’s total combined evaluation is 10 percent from June 27, 1986, and 50 percent from March 29, 2010 to March 7, 2012, the end of the period at issue. Because the Veteran does not have a combined evaluation of at least 70 percent with at least one disability evaluated at 40 percent or higher, or a single service-connected disability that has been rated 60 percent or higher during the period at issue, under the 38 C.F.R. § 4.16(a) criteria outlined above, the Veteran does not meet the schedular criteria for a schedular TDIU rating. Consequently, a TDIU rating on a schedular basis, under 38 C.F.R. § 4.16(a), is not warranted for the applicable period. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Extraschedular TDIU If the above percentage thresholds are not met, the Veteran’s claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). The Veteran completed seven years of school and eventually obtained a G.E.D., and was last gainfully employed as a heating, ventilation, and air-conditioning (HVAC) technician and other construction work in 2008. He has no formal schooling or technical training beyond his G.E.D. He has done no other type work other than construction since leaving active military service in 1986. In his VA Application for Increased Compensation Based on Unemployability, the Veteran asserts that his compression fracture of the L1 in his spine and his depression are the service-connected disabilities that prevent him from securing or following any substantially gainful occupation, and that he last worked in December 2008. In May 2010, prior to the beginning of the period under appeal, the Veteran received a VA spine examination where the examiner noted the Veteran was unable to lift heavy objects and that he could not bend, push, pull, squat, or kneel; all activities involved in general construction work. In March 2012, the Veteran received an internal medicine examination from a Social Security-contracted physician, who assessed the Veteran’s spine. This examiner noted the Veteran to be in chronic distress, requiring the use of a shepherd’s crook to walk in a normal vertical stability position. He opined the Veteran had a moderate restriction for any prolonged standing, walking, squatting, or kneeling, doing any heavy lifting, or carrying objects of any significant weight because of the lumbar compromise. Also in March 2012, the Veteran was seen by his VA psychiatrist, who noted during that examination the Veteran’s chronic pain, impaired, mood, insomnia resulting in concentration difficulties, and impaired ability to perform tasks. This examiner remarked the Veteran had moderate impairments in ability to understand and remember instructions, carry out detailed instructions, make simple work decisions, interact appropriately with the public, and respond appropriately to work pressures and changes. As part of the Board’s remand of October 2017, an additional opinion regarding the Veteran’s employability prior to March 7, 2012 was sought after a comprehensive review of his records. The VA examiner’s formal statement was that in his opinion, the Veteran was at least capable of limited sedentary work during the period prior to March 2012. This examiner noted the May 2010 VA examination, which noted normal to near normal lumbar range of motion with pain on flexion which would limit the Veteran to occupations that do not require heavy lifting or to bend, push, pull, squat, or kneel with the left knee. This examiner wrote that the Veteran can sit without limitation, stand and walk for up to two hours, can climb 7 flights of stairs, do fine manipulation, reach shoulder high, and drive a vehicle. The March 2012 Social Security examination noted limited lumbar range of motion with an antalgic gait and left knee pain, but also that the Veteran required no help changing clothes, getting on and off the exam table, or rising from a chair. This March 2012 examiner noted the Veteran’s occupational restrictions as moderate for prolonged standing, walking, squatting, kneeling, lifting, and carrying. This same examiner from Social Security also noted that the Veteran’s pain complaints were out of proportion to the physical findings. A psychiatric evaluation of March 2012, also done for Social Security documented mood disorder, anxiety, and polysubstance abuse. The Board notes that Social Security’s formal decision in March 2012 was that the Veteran’s current medical conditions did not keep him from working. The Board also notes a VA mental disorders examination from March 2013, beyond the period in question, but pertinent still in that the psychologist examiner deemed the Veteran to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The effects of the Veteran’s service-connected depressive disorder and lumbar spine compression fracture, plus his painful left knee, may very well result in some occupational impairment. However, such interference is contemplated in the currently-assigned ratings for the Veteran’s service-connected disabilities, and the weight of the evidence does not demonstrate total occupational impairment associated with the service-connected psychiatric disorder, lumbar spine disability, and left knee disability for the period prior to March 7, 2012. Additionally, the Board acknowledges that the evidence indicates the Veteran’s service-connected disabilities could interfere with some types of employment to include employment that involves walking, standing for prolonged periods, lifting heavy objects, and bending. However, not all forms of gainful employment are precluded by any service-connected disability, or a combination thereof. Gary, supra. The evidence of record does not demonstrate that the service-connected disabilities alone render the Veteran unemployable. The Board notes and acknowledges the limitations of the Veteran’s other diagnosed conditions, especially chronic obstructive pulmonary disorder (COPD). However, those other physical disabilities are not service-connected, and are thus not pertinent to the Veteran’s claim for a TDIU. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Under these circumstances, the Board concludes that extraschedular referral for TDIU is not warranted. Gilbert, supra. Based on the foregoing, the Board finds that referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran is unable to follow or secure substantially gainful employment due his service-connected disabilities for the period prior to March 7, 2012. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel