Citation Nr: 18151299 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 12-28 382 DATE: November 16, 2018 ORDER Entitlement to a staged initial rating in excess of 10 percent for lumbosacral strain for the period from June 12, 2008, through February 16, 2009, is denied. Entitlement to a staged initial rating in excess of 40 percent for lumbosacral strain for the period from February 17, 2009, through December 31, 2010, is denied. Entitlement to a staged initial rating in excess of 10 percent for lumbosacral strain for the period from January 1, 2011, through February 1, 2017, is denied. Entitlement to a staged initial rating in excess of 40 percent for lumbosacral strain from February 2, 2017, is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) prior to January 23, 2017, is denied. FINDINGS OF FACT 1. For the rating period from June 12, 2008 through February 16, 2009, the Veteran’s lumbosacral strain was manifested by pain, productive of functional impairment comparable to forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 2. For the rating period from February 17, 2009, through December 31, 2010, the Veteran’s lumbosacral strain was manifested by pain, productive of functional impairment comparable to forward flexion of the thoracolumbar spine limited to 30 degrees or less. 3. For the rating period from January 1, 2011, through February 1, 2017, the Veteran’s lumbosacral strain was manifested by pain, productive of functional impairment comparable to forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 4. For the rating period from February 2, 2017, the Veteran’s lumbosacral strain is manifested by pain, productive of functional impairment comparable to forward flexion of the thoracolumbar spine limited to 30 degrees or less. 5. The most probative evidence of record does not reflect that it is at least as likely as not that, prior to January 23, 2017, the Veteran was unable to secure or follow a substantially gainful occupation due to his then service-connected disabilities. CONCLUSIONS OF LAW 1. For the rating period from June 12, 2008 through February 16, 2009, the criteria for a staged initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.41, 4.56, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 2. For the rating period from February 17, 2009 through December 31, 2010, the criteria for a staged initial rating in excess of 40 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.41, 4.56, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 3. For the rating period from January 1, 2011 through February 1, 2017, the criteria for a staged initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.41, 4.56, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 4. From the rating period from February 2, 2017, the criteria for a staged initial rating in excess of 40 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.41, 4.56, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 5. Prior to January 23, 2017, the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1970 to February 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction currently resides with the RO in Hartford, Connecticut. The Veteran and his representative appeared at a Board hearing in May 2014. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran clarified that he was not seeking a restoration or alleging error in the rating decision reducing his disability rating for a lumbosacral strain, but rather seeking any and all ratings warranted higher than 10 percent for such disability. Accordingly, the Board has recharacterized the claim as indicated above. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); Copeland v. McDonald, 27 Vet. App. 333, 339 (2015) (VA has a duty to maximize benefits). The Board remanded this matter in January 2015. A review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that an additional VA treatment record has been associated with the claims file since the last statement of the case was issued, and the Veteran has not waived RO jurisdiction. However, the Board finds that such treatment record is duplicative of evidence previously considered. As such, there is no prejudice to the Veteran by the Board’s adjudication of the appeal at this time. Hence, remand for readjudication of the appeal with consideration of the additional VA treatment record would needlessly delay adjudication with no benefit to the Veteran. See 38 C.F.R. § 19.37; Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). A brief explanation is necessary regarding the Veteran’s staged ratings. In the June 2009 rating decision, service connection was granted for the disability at issue, with staged initial ratings assigned of 10 percent from June 12, 2008, and 40 percent from February 17, 2009. Notice of the determination was issued on June 29, 2009. In May 2010, the RO proposed to reduce the Veteran’s 40 percent rating. See 38 C.F.R. § 3.105 (e). VA received correspondence from the Veteran on June 14, 2010, in which he expressed disagreement with the proposed reduction. Nevertheless, an October 2010 rating decision reduced the Veteran’s rating from 40 percent to 10 percent, effective January 1, 2011, and the Veteran timely appealed that decision. However, the Board finds that, with resolution of doubt in the Veteran’s favor, the correspondence received on June 14, 2010, can be reasonably construed as a notice of disagreement with the June 2009 rating decision assigned staged initial ratings, as it was received within one year of the notification letter, and expressed dissatisfaction with the ratings assigned. As a substantive appeal was received within 60 days of issuance of the statement of the case, the Board finds that the June 2009 rating decision is on appeal. See 38 C.F.R. §§ 3.104, 20.302. Although the Veteran’s appeal was filed in connection with a reduced rating, he later clarified that he was seeking any and all ratings warranted higher than 10 percent for his spine disability, and was not seeking restoration or alleging error in the reduction. Accordingly, the Board will consider the application of staged ratings from the initial date of the award of service connection. 38 C.F.R. § 3.400 (o). A January 2015 Board decision found that the issue of entitlement to a TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU was denied in a supplemental statement of the case issued in May 2015. Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015), Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Increased Rating – Spine Disability The Veteran seeks higher staged initial ratings for his service-connected lumbosacral strain, evaluated at 10 percent from June 12, 2008 through February 16, 2009, 40 percent from February 17, 2009 through December 31, 2010, 10 percent from January 1, 2011 through February 1, 2017, and 40 percent from February 2, 2017. The Board notes that the Veteran was granted separate service connection for radiculopathy of the sciatic nerve of the right lower extremity, and for radiculopathy of the sciatic nerve of the left lower extremity in a March 2012 rating decision. The Veteran did not file a timely notice of disagreement with that decision, or submit correspondence that can reasonably be interpreted as such. 38 C.F.R. §§ 3.104, 20.302. Furthermore, radiculopathy warrants a separate rating under criteria distinct from the lumbosacral strain at issue. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1; 38 C.F.R. § 4.124a, Diagnostic Code 8520. Therefore, the Board will not adjudicate the ratings assigned for radiculopathy. In rating disabilities of the musculoskeletal system, it is necessary to consider, subject to the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under the General Rating Formula for Disease and Injuries of the Spine, at 38 C.F.R. § 4.71a, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or when there exists muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal contour; or, a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when 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, when 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. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities are rated separately under relevant diagnostic codes. Id. at Note (1). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a 10 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted for IVDS with 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 disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated 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. 38 C.F.R. § 4.71a. The Veteran had a VA examination in December 2008. The Veteran reported having pain all day, without flare-ups, and no incapacitating episodes within the last year. X-ray testing showed a slight narrowing of the L5-S1 disc space, but otherwise “essentially normal” results. Upon examination, the Veteran had a normal gait, no muscle spasm, but complained of pain in the right sacroiliac joint on palpitation. Range of motion testing showed 0-80 degrees of flexion without pain, 0-20 degrees of extension without pain, 0-30 degrees of right and left flexion with mild pain, and 0-30 degrees of right and left rotation without pain. Repetitive motion testing resulted in no change in range of motion, coordination, weakness, endurance, fatigue, or pain level. The Veteran submitted private medical records from February 2009. The physician, Dr. J.M., noted pain on palpitation and an antalgic gait. Range of motion testing revealed 30 degrees flexion, 10 degrees extension, 10 degrees left lateral flexion, 5 degrees right lateral flexion, 5 degrees left rotation, and 5 degrees right rotation. The Veteran had a VA examination in March 2010. He reported continuing back pain affecting daily activities, having flare-ups once per day causing him to seek bedrest for a few hours, and increased pain with prolonged sitting and standing. Upon examination, the Veteran displayed a slightly antalgic gait, and no palpable muscle spasms. Range of motion findings were flexion from 0-90 degrees with pain from 70-90 degrees, extension from 0-10 degrees with pain at 10 degrees, right and left rotation from 0-20 degrees with pain at 20 degrees, and right and left lateral flexion from 0-20 degrees with pain at 20 degrees. VA treatment records evince that the Veteran complained of lower back pain in March 2011. The clinician noted that the Veteran’s symptoms waxed and waned depending on his level of activity, and were aggravated by prolonged sitting, standing, and bending. The clinician continued medications, and scheduled a consult for a transcutaneous electrical nerve stimulation (TENS) machine. The Veteran had a VA examination in January 2012. He reported having flare-ups of back pain 3-4 times per week, causing him to stop activity and seek self-imposed bed rest for 35-45 minutes. The examiner did not opine as to whether the reported flare-ups resulted in additional functional loss or limitation of motion. Range of motion testing revealed forward flexion to 90 degrees or greater with pain on 80 degrees, extension to 10 degrees with pain on 10 degrees, right lateral flexion to 20 degrees with pain at 20 degrees, left lateral flexion to 20 degrees with pain at 20 degrees, right lateral rotation to 30 degrees with pain on 30 degrees, left lateral rotation to 30 degrees with pain on 30 degrees. The Veteran performed repetitive use testing with no additional loss of range of motion. The examiner found that the Veteran had functional loss including less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weightbearing. The examiner documented no invertebral disc syndrome, ankylosis, or guarding or muscle spasm severe enough to result in an abnormal gait. The Veteran appeared at a Board hearing in May 2014. He testified, among other things, that he suffered from back pain interfering with his ability to stand, sit, and ride for long periods, that he had beem issued a TENS unit which did not provide any relief, and that he has difficulty with daily activities due to his condition. The Veteran had another VA examination in March 2015. The Veteran did not report flare-ups. Range of motion testing revealed flexion to 80 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, left lateral rotation to 15 degrees. Pain causing functional loss was noted on each measurement. The Veteran performed repetitive use testing with no additional functional loss, and had a “biomechanically normal” gait. The examiner found no evidence of ankylosis, guarding, or muscle spasms. VA medical records from July 2015 reflect continuing treatment for back pain. The Veteran reported that his medication was not strong enough, and he had to double the intended dose. He denied performing any back exercises recently. A disability index questionnaire revealed a “severe” disability score, based on factors including pain with walking, sitting, standing, and sleeping. The Veteran’s gait was normal, but the clinician observed that pain limited the evaluation. In February 2017, the Veteran had a VA examination with the same examiner who performed the March 2015 examination. The Veteran did not report flare-ups. Range of motion testing revealed forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Pain causing functional loss was noted on each measurement, and range of motion contributed to functional loss by making the Veteran unable to bend or lift. The Veteran performed repetitive use testing with no additional functional loss. The examiner documented guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. After careful review, the most probative evidence of record is against assigning higher staged ratings for the Veteran’s service-connected lumbosacral strain during the rating periods on appeal. The December 2008 VA examiner documented flexion of the thoracolumbar spine to 80 degrees. The Veteran’s combined range of motion was 220 degrees, and he had a normal gait. Such a level of functional impairment is contemplated by a 10 percent disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The evidence does not suggest that prior to February 17, 2009, the Veteran exhibited forward flexion limited to 60 degrees or less, a combined range of motion not greater than 120 degrees, or muscle spasm or guarding causing abnormal gait to the extent that a higher rating is warranted. Therefore, the most probative evidence is against assigning a rating in excess of 10 percent for the period from June 12, 2008 through February 16, 2009. The Board has considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202. At the December 2008 VA examination, the Veteran did not report flare-ups, or manifest additional functional loss after repetitive use testing. As such, the Board finds that, even with consideration of the Veteran’s complaints of pain, there has not been a demonstration of functional impairment to the degree required to more closely approximate a higher rating for the period on appeal prior to February 17, 2009. See Mitchell, 25 Vet. App. at 32. At Dr. J.M.’s evaluation on February 17, 2009, the Veteran displayed flexion to 30 degrees. Such a level of functional impairment is contemplated by a 40 percent rating. The evidence does not show that, for the rating period from February 17, 2009 through December 31, 2010, the Veteran displayed any ankylosis of the thoracolumbar spine to warrant a higher rating. 38 C.F.R. § 4.71a. Therefore, the most probative evidence is against assigning a rating in excess of 40 percent for the rating period from February 17, 2009 through December 31, 2010. The Board has considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202; Burton, 25 Vet. App. at 1. The Veteran reported flare-ups to the March 2010 VA examiner. However, the evidence does not suggest that he experienced additional functional loss during such flare-ups to the extent that a rating higher than 40 percent would be warranted. Specifically, he manifested significant range of motion, including after repetitive use testing. As such, the Board finds that, even with consideration of the Veteran’s complaints of pain, there has not been a demonstration of functional impairment to the degree required to more closely approximate a higher rating for the rating period from February 17, 2009 through December 31, 2010. The January 2012 VA examiner documented forward flexion to 90 degrees, and a combined range of motion of 200 degrees, and no abnormal gait. The March 2015 VA examiner documented forward flexion to 80 degrees, a combined range of motion of 135 degrees, and a normal gait. Such manifestations are contemplated by a 10 percent disability rating. See 38 C.F.R. § 4.71a. The evidence does not suggest that for the rating period from January 1, 2011 through February 1, 2017, the Veteran exhibited forward flexion limited to 60 degrees or less, combined range of motion not greater than 120 degrees, or muscle spasm or guarding causing abnormal gait to the extent that a higher rating is warranted. Therefore, the most probative evidence is against assigning a rating in excess of 10 percent for the rating period the rating period from January 1, 2011 through February 1, 2017. The Board has considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202; Burton, 25 Vet. App. at 1. Although the Veteran reported flare-ups to the January 2012 examiner, the evidence does not suggest that he experienced additional functional loss during such flare-ups to the extent that a rating higher than 10 percent would be warranted. Specifically, he had forward flexion to 90 degrees or greater, and performed repetitive use testing without additional loss of range of motion. Accordingly, the Board finds that there has not been a demonstration of functional impairment to the degree required to more closely approximate a higher rating prior to February 2, 2017. The February 2017 VA examiner documented forward flexion to 20 degrees. Such a level of functional loss is contemplated by a 40 percent disability rating. The most probative evidence of record has not documented any ankylosis of the thoracolumbar spine to warrant a higher rating. 38 C.F.R. § 4.71a. Therefore, the most probative evidence is against assigning a rating in excess of 40 percent at any time from February 2, 2017. The Board has considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202; Burton, 25 Vet. App. at 1. The Veteran did not report flare-ups to the February 2017 examiner, and was able to complete repetitive use testing without additional loss of range of motion. As such, the Board finds that, even with consideration of the Veteran’s complaints of pain, there has not been a demonstration of functional impairment to the degree required to more closely approximate a higher rating from February 2, 2017. A higher rating under the criteria for IVDS is also not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Although the Veteran reported flare-ups in which he sought bed-rest, there is no indication that the Veteran suffered incapacitating episodes as defined in 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1, which requires “bed rest prescribed by a physician and treatment by a physician” (emphasis added). There is no indication that a physician prescribed bed rest and provided treatment for the Veteran during any incapacitating episodes, and the January 2012 VA examiner specified that the Veteran’s bed rest was “self-imposed.” Additionally, the Board has considered the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In March 2010, the Veteran reported flare ups once per day causing him to seek bed rest for 1-3 hours. In January 2012, the Veteran reported 3-4 weekly flare-ups, in which he felt additional pain and needed bed rest for periods of 35-45 minutes. The March 2010 and January 2012 VA examiners did not discuss any additional limitations to functional loss occurring during flare-ups. However, both examiners considered all available information, and elicited details of the characteristics and severity of the Veteran’s reported flare-ups. They documented significant range of motion, which remained unchanged after repetitive use testing. Furthermore, the Veteran did not report any flare-ups in the March 2015 or February 2017 VA examinations, indicating that they had resolved. The examination reports do not suggest that the findings, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran’s lay statements. See 38 U.S.C. § 5103A (a)(2). The Board has considered the Veteran’s lay statements. He is competent to report symptoms, such as back pain, that are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also credible in his belief that he is entitled to a higher rating. Id. However, the Veteran is not competent to offer a medical opinion, for example, as to the severity of his service-connected lumbosacral strain relative to the schedular rating criteria, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Therefore, the Board relies upon the competent, probative medical evidence of record, which is thorough and provides enough detail to rate the Veteran under the relevant rating criteria. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board has also considered whether the Veteran is entitled to referral for assignment of a greater level of compensation on an extra-schedular basis. 38 C.F.R. § 3.321 (b). Ordinarily, the rating schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulations, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must consider whether there exists such an exceptional disability picture that the relevant, available schedular ratings are inadequate. Next, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran’s lumbosacral strain with the established criteria found in the schedule for that disability shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, as previously discussed. Specifically, the Veteran has reported low back pain that limits his daily activities. The rating schedules for musculoskeletal disabilities contemplate such functional loss, including that caused by pain, stiffness, and limitation of range of motion. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the symptoms experienced by the Veteran are not considered exceptional or unusual, and any functional loss has been adequately considered under the schedular rating criteria. Neither the Veteran nor his representative has raised any other issues, nor have any been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are raised by the claimant or by the evidence of record). In sum, the preponderance of the evidence is against assigning higher staged ratings for the Veteran’s service-connected lumbosacral strain. Fenderson v. West, 12 Vet. App. at 126-27; Hart, 21 Vet. App. at 519. As the preponderance of the evidence is against the claim, the benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b). Entitlement to a TDIU prior to January 23, 2017 The RO granted entitlement to a TDIU in an April 2017 rating decision, effective from January 23, 2017, the date of receipt of the Veteran’s VA Form 21-8940. The Veteran seeks entitlement to a TDIU prior to January 23, 2017. As noted above, the claim for a TDIU stems from the appeal for higher staged initial ratings for the service-connected lumbosacral strain, pursuant to Rice. As such, the rating period for consideration of entitlement to a TDIU is from June 12, 2008 through January 22, 2017. For the rating period on appeal from June 12, 2008 through January 22, 2017, service connection was established for: major depressive disorder, rated 30 percent from January 20, 2010 through May 7, 2014, and 50 percent from May 8, 2014; for lumbosacral strain rated 10 percent from June 12, 2008 through February 16, 2009, 40 percent from February 17, 2009 through December 31, 2010, and 10 percent from January 1, 2011; for radiculopathy of the sciatic nerve of the right lower extremity, rated 10 percent from November 16, 2010; and for radiculopathy of the sciatic nerve of the left lower extremity, rated 10 percent from November 16, 2010. For the rating period on appeal from June 12, 2008 through January 22, 2017, his combined schedular rating was 10 percent from June 12, 2008 through February 16, 2009, 40 percent from February 17, 2009 through January 19, 2010, 60 percent from January 20, 2010 through November 15, 2010, 70 percent from November 16, 2010 through December 31, 2010, 50 percent from January 1, 2011 through May 7, 2014, and 70 percent from May 8, 2014. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, but the percentage requirements of § 4.16 (a) are not met, the matter may be referred to the Director, Compensation Service, for consideration of entitlement to the benefits on an extraschedular basis. 38 C.F.R. § 4.16 (b). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). VA’s duty to maximize benefits requires it to assess all of a claimant’s service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114 (s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall be deemed to exist when a Veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts found basis when earned annual income exceeds the poverty threshold. See 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Id. A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, VA is responsible for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the purposes of assigning effective dates, TDIU claims are treated as if they are increased rating claims. 38 C.F.R. § 3.400 (o). The RO sent the Veteran a Veterans Claims Assistance Act (VCAA) notice letter in January 2017, informing him of the opportunity to submit additional evidence to support his claim for TDIU. In response, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability, which contained employment information and an allegation that his service-connected depressive disorder and low back condition prevented him from working (the Board notes that the Veteran also requested that his shoulder and elbow disabilities be included in the decision, but such disabilities are only considered for pension purposes and are not service-connected for compensation). Turning to the evidence of record, the Board notes that the Veteran has multiple service-connected disabilities stemming from the same event, which may be considered a single disability for purposes of the schedular criteria outlined in 38 C.F.R. § 4.16(a). Nevertheless, regardless of whether or not the criteria of § 4.16(a) are met for any period during the rating period on appeal, the initial consideration is whether the Veteran’s service-connected disability precluded the Veteran’s ability to maintain substantially gainful employment. The Veteran’s Form DD-214 shows that his military occupation specialty was a unit armorer, with no additional military education or training. The Veteran stated that he has worked as a cook’s helper, chemical disposal employee, and road worker. He reported having a tenth-grade education. The December 2008 examiner noted that the Veteran used to do labor-type work until 2002, when he received VA disability benefits for multiple conditions. The Veteran stated that bending, walking 12 blocks, and long periods of sitting, aggravated his back pain. He reported a lack of endurance, and that he had trouble with daily activities such as mowing the lawn. A VA psychiatric examination in March 2010 revealed that the Veteran had worked as a painter for 13 years. The Veteran reported that, while sitting, he shifted positions frequently to avoid pain. The examiner opined that the Veteran’s ability to perform activities of daily living was fair, secondary to back pain. The level of functional impairment was equivalent to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). In March 2010, the Veteran reported that he was currently not working, had difficulty walking more than one block and standing for more than 10 minutes, and had increased pain when sitting and standing for prolonged periods. In January 2012, the VA examiner observed that the Veteran was unemployed. However, the Veteran reported that he experienced back pain during periods when he was working. The March 2015 examiner indicated that the Veteran is unable to engage in manual labor involving prolonged standing, walking, bending, and lifting. However, the Veteran may engage in sedentary (sitting) employment. A January 2017 VA psychiatric examination found the Veteran to have occupational and social impairment with reduced reliability and productivity. In February 2017, the VA examiner opined that the Veteran’s low back disability significantly increased since the last examination. He noted that the Veteran was currently taking a class II controlled drug chronically for his back condition, and experienced increased manifestations of associated radiculopathy. He opined that the Veteran was unable to engage in heavy, moderate, or light manual labor involving bending and lifting repeatedly, and that due to the Veteran’s current use of a medications affecting judgment, he could think of no sedentary (sitting) employment for which the Veteran remains qualified. After careful review, the most probative evidence does not show that it is at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation due to his then service-connected disabilities prior to January 23, 2017. The Veteran’s service-connected disabilities did not preclude him from entry-level, low-skilled positions with primarily seated occupational tasks not requiring heavy lifting, during the period on appeal. He had difficulty with prolonged standing, walking long distances, and bending. However, the probative medical evidence does not show restricted range of motion of the thoracolumbar spine to the extent that the Veteran would have been unable to pursue primarily seated occupational tasks during the appeal period. The Veteran would have still been able to complete the core duties of occupations involving primarily seated tasks, such as clerical work, telephonic solicitation/dispatch, or assembly work. See Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) (the duty to assist does not require VA to provide an analysis of the actual opportunities available in the job market). The Veteran’s psychiatric symptoms have been shown to be of the severity and extent to be characterized as productive of functional impairment no worse than reduced reliability and productivity, and did not render him unable to perform such duties prior to January 23, 2017. 38 C.F.R. §§ 4.126, 4.130. In reaching this conclusion, the Board has considered the Veteran’s educational background and occupational history. Pederson v. McDonald, 27 Vet. App. 276, 287 (2015). Such history, while limiting, did not render the Veteran unable to obtain low-skilled, entry-level positions in occupations with primarily seated duties prior to January 21, 2017. Id. at 287 (specialized education or training is not a prerequisite to non-physical employment). Although the Veteran was unemployed during the appeal period, the record does not show that he was unable, by reason of his service-connected disabilities, to obtain substantially gainful employment. See Van Hoose, 4 Vet. App. at 363. The Board has considered whether the Veteran may be granted SMC under 38 U.S.C. § 1114 (s). The Veteran has been granted a TDIU; however, he does not have a single service-connected disability rated as total. See Buie, 24 Vet. App. at 249-50. Furthermore, the Veteran has not asserted that he is bedridden, housebound, or in need of regular aid and attendance due to his service-connected disabilities, and the evidence does not support the same. See 38 U.S.C. § 1114. In sum, the preponderance of the most probative evidence of record does not establish that prior to January 23, 2017, the Veteran was unable to secure and   follow a substantially gainful occupation due to his service-connected disabilities. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel