Citation Nr: 1808991 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 10-12 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service connected chronic low back pain with degenerative joint disease L5/SI on an extraschedular basis. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had a period of active duty training from September 1974 to March 1975, and active military service from January 1976 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied an increased rating in excess of 10 percent for a service-connected low back disability. In his March 2010 substantive appeal the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ) and he was scheduled for a hearing and notice of the date, time, and location of the hearing was provided. However, he failed to report for the hearing, without explanation or any request to reschedule. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). A Board decision in June 2014 denied the claim for an increased evaluation on a schedular and extraschedular basis and also declined to address potential entitlement to a TDIU rating. The Veteran appealed to the United States Court of Appeals for Veterans Claims, hereinafter the Court, which vacated that portion of the Board decision which declined to address a TDIU rating and which denied an increased rating for the service-connected low back disorder on an extraschedular basis by not referring that portion of the claim to the VA Director of Compensation. The Appellant abandoned any appeal of the portion of the Board decision which denied entitlement to a schedular disability rating in excess of 10 percent for the service-connected low back disability, to include degenerative disc disease (DDD). By Court Order of February 2015 the case was referred back to the Board for further action in accordance with a February 2015 Joint Motion for Partial Remand (JMR). In April 2015 the Board remanded the case pursuant to the JMR. In a December 2017 Post-Remand Brief the Veteran's representative noted that subsequent to certification of the case following the 2015 Board remand, additional evidence was added to the electronic appellate record in the Veterans Benefits Management System (VBMS) which had not been reviewed by the AOJ. Pursuant to 38 C.F.R. § 20.1304(c), the Veteran, via his representative, waived initial review of this evidence by the AOJ. The Board has reviewed the Veteran's electronic records maintained in Legacy Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran's service-connected low back disorder does not present any manifestations, symptoms or factor that create an unusual disability picture that falls outside of the rating schedule. 2. The Veteran has a high school education and work experience owning and operating a painting and dry-wall installation business. 3. The Veteran is service connected for: chronic low back pain with degenerative joint disease at L5-S1, rated 10 percent disabling; radiculopathy of the right lower extremity, rated 10 percent disabling; and radiculopathy of the left lower extremity, rated 10 percent disabling. He is in receipt of a combined disability rating, including the bilateral factor, of 30 percent. 4. The Veteran's service-connected disorders, cumulatively and irrespective of his significantly disabling nonservice-connected disabilities, do not preclude his obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service connected chronic low back pain with degenerative joint disease L5/SI on an extraschedular basis are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 3.321(b)(1) (2017). 2. The criteria for a TDIU rating on an extraschedular basis are not met. 38 C.F.R. §§ 3.102, 4.16(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). By RO letter of April 6, 2016, pursuant to the Board's 2015 remand, the Veteran was provided VCAA notice as to how to substantiate his claim for a TDIU rating. That notice, together with the 2014 Board decision (which addressed extraschedular entitlement for a higher rating for the service-connected low back disorder but which was vacated by the Court) also informed him of how to substantiate his claim for a higher disability rating on an extraschedular basis. As to the duty to assist, pursuant to the 2015 Board remand, the RO's April 6, 2016, letter requested that the Veteran provide information or records of all private sources of treatment since January 2013. However, the Veteran has responded, and has submitted evidence directly. Thus, all identified private treatment records have been obtained and associated with the claims file. The Veteran's service and VA treatment records are a part of the record, including those since January 2013, pursuant to the 2015 Board remand. In a December 2017 Post-Remand Brief the Veteran's representative noted that in compliance with the JMR VA treatment records had been associated with the Veteran's electronic appellate record in VBMS. The 2015 Board remand also requested that an attempt be made to obtain any outstanding records of the Social Security Administration (SSA). In the December 2017 Post-Remand Brief it was observed, correctly, that the RO had attempted to obtain SSA records but had received a response on May 18, 2016, that there were no medical records for the Veteran. The Veteran was informed of this by RO letter of May 20, 2016. The representative also pointed out that on August 29, 2016, the Veteran submitted a Statement in Support of Claim (VA Form 21-4138), in which he stated he had never been in receipt of SSA benefits. Specifically, he stated that "I have never been on Social Security." On the other hand, as to receipt of SSA benefits, the JMR, at pages 2 and 3, stated that: in 2001, Appellant testified that he had not worked since 1997 and suggested that he stopped working due to his back pain; he also testified that he was receiving Social Security benefits in part due to his back disability. R. at 826-28 (818-31) (April 2001 Board hearing transcript). In addition, an October 1997 Social Security Administration (SSA) decision concerning entitlement to Supplemental Security Income benefits stated that "the vocational expert testified that an individual with such degrees of pain would not be capable of engaging in sustained substantial gainful activity." R. at 882 (881-90) (October 31, 1997, SSA decision). The SSA Administrative Law Judge concluded that Appellant's "degenerative changes of the lumbar spine restrict him to light work activity that is further reduced by his severe and chronic back pain." Id. The 1997 award was for SSA supplemental income benefits and while not described as an award for disability benefits, that SSA decision was premised upon the Veteran's overall impairment of functional ability due to multiple disabilities, some of which were not service-connected. In any event, it is clear that the underlying medical records are not available. Also in compliance with the 2015 Board remand, a VA Social Work and Industrial Survey was conducted in October 2016. Moreover, and in compliance with the 2015 Board remand, the case was forwarded to VA's Director, Compensation Service. Outside of the matters addressed in the JMR, neither the Veteran nor his representative has raised any issues as to the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). See also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (duty to assist a hearings). Background Private clinical records show that in 1997 the Veteran underwent the surgical placement of lumbar epidural steroids due to radiating low back pain. Of record is an October 1997 award by an SSA Administrative Law Judge (ALJ) of Supplemental Security Income with the Veteran having been disabled since November 1996. That decision noted that the Veteran had a low back disability, diabetes, and obesity. It was noted that two physicians had indicated that the Veteran had retained the ability to lift objects within the light range of exertion and both indicated that his severe back pain substantially increased with activities. A vocational expert indicated that, in light of this, jobs would exist for one with such limitations but such degrees of pain would preclude one from engaging in sustained substantial gainful activity. The ALJ found that the low back degenerative changes restricted the Veteran to light work activity which was further restricted by severe and chronic back pain. He was thus restricted to a substantially reduced range of light and sedentary work. The vocational expert testified that there existed no work in the national economy that the Veteran could perform considering his age, education, past work activity, and remaining physical and mental capabilities. Private records in 1998 show in addition to low back pain, a July 1998 MRI revealed an abnormality of the right medial meniscus and that the Veteran had a right knee arthroscopic procedure of the right knee which found articular cartilage changes of the right patella and lateral tibial plateau. Private clinical records in 2008 show that the Veteran had low back pain and was insulin dependent, and also had hypertension, gastroesophageal reflux disease (GERD), obstructive sleep apnea, and frequent sinusitis. An echocardiogram revealed mild left ventricular hypertrophy, aortic sclerosis, mild tricuspid regurgitation, and moderate pulmonary hypertension. The Veteran testified at an April 2001 Board videoconference in connection with an appeal for service connection for low back disability and service connection for disability of the right knee. He testified that his right knee would lock or cause him to fall. He used a back brace and for low back pain he used a TENS unit. He last worked in 1997 operating his own painting business but had to stop due to back pain. He testified, at page 10 of the transcript, that he received Social Security disability because of his low back disability and his diabetes. A June 2001 Board decision denied reopening of the claim for service connection for a right knee disability and remanded the claim for service connection for a low back disability for a VA nexus examination (and that claim was subsequently granted by the RO in 2003). A July 2002 VA examination shows that the Veteran complained of continued low back pain which was aggravated by activities such as bending and lifting. He reported being able to stand and walk better than being able to sit. His low back pain radiated down to his knees, and he sometimes had numbness and tingling of the toes but had previously been told that this was due to his nonservice-connected diabetes. On examination he had a satisfactory gait pattern, and was able to stand erect despite being obese. He had tenderness of the mid-low back but no spasm. Flexion and lateral bending in each direction were to 30 degrees, with pain primarily on lateral bending. Neurologically his lower extremities were intact but there were trace reflexes at the knees and ankles with augmentation. Straight leg raising caused pain in the right leg but not the left leg. The examiner reported that pain could further limit functional ability during flare-ups or with increased use but this could not be expressed in degrees of additional limitation of motion. A March 2003 rating decision granted service connection for chronic low back pain with degenerative disc disease (DDD) and assigned an initial 10 percent disability rating. Records from 2002 to 2008 of South Baldwin Podiatry show continued treatment of the Veteran's feet for diabetic complications. The Veteran's complaints included soreness, burning, tingling, and numbness. In 2002 macerated tissue of a foot was debrided. In 2007 he had trophic changes and mycotic infections of all toes. He had neurologic findings of the feet consisting of paresthesias, e.g., tingling and shooting sensations as well as burning sensations, as well as an absence of protective sensation. He had vascular abnormalities consisting of absent posterior tibial pulses of both feet. Also in 2007 he had surgical debridement of a diabetic lesion and necrotic tissue of the left foot. On VA examination in December 2007 it was noted that the Veteran had been prescribed bedrest due to a left foot diabetic ulcer debridement earlier that month. He was independent in his activities of daily living. He weighed 349.5 pounds, and was 74 inches in height. He complained of constant, throbbing low back pain but denied having significant flare-ups. He had no associated weakness, numbness, or bowel or bladder dysfunction. Prolonged sitting for more than 15 to 20 minutes aggravated his back pain. His back pain radiated down both legs to his feet but more so down the left leg. He felt that he was limited by low back pain and stiffness. He currently used crutches because of the debridement of a diabetic foot ulcer but normally did not use any ambulatory aid. On physical examination the Veteran's normal lumbar lordosis was slightly flattened. Deep tendon reflexes were +1/4, and equal bilaterally at the patellae and ankles. There was no atrophy or hypertrophy. There was a left sided muscle spasm. Straight leg raising was positive on the left at 5 degrees, which was considered negative. Strength was normal for his age in the thighs and legs, bilaterally. Sensation was intact. The examiner reported that there were no objective findings of radiculopathy or polyneuropathy. While standing forward flexion was to 90 degrees, extension to 5 degrees, right and left lateral flexion to 25 degrees and right and left lateral rotation to 35 degrees. After three repetitions forward flexion was further limited to 75 degrees, but extension, right and left lateral flexion, and right and left lateral rotation remained the same, with the initial limitations noted to be solely due to the Veteran's body habitus. There was no discomfort or difficulty on range of motion testing. There was tenderness on palpation of the low back and the left paraspinal area. No history of incapacitating episodes was related. The diagnosis was lumbar DJD with no objective findings of radiculopathy. Private clinical records in 2008 show that an MRI revealed lumbar DDD from L4 thru S1, with retrolisthesis of L5 as to S1 with diffuse disc bulging. On examination in May 2008 the Veteran complained of radicular low back pain which was worse with activity including periods of walking. He weighed 350 pounds. Flexion was to 50 percent of normal, and extension was to 10 degrees. He could heel and toe walk with some difficulty. His motor status was intact but his reflexes were decreased, bilaterally, in the S1 nerve root distribution. He was to be placed in a physical therapy program. A private medical record in May 2008 record indicates forward flexion to 50 percent of normal, but did not state what constituted normal forward flexion. An April 2009 treatment record indicated that overall the Veteran's lumbar range of motion was reduced by 10 to 25 percent, but provided no precise measurements in degrees or any information on what constitutes a normal combined range of motion. Private clinical records show that in May 2009 the Veteran underwent a microscopic lumbar discectomy for intractable low back pain with radiation of pain into the left leg. A September 2009 nerve conduction study at the South Baldwin Regional Medical Center revealed bilateral CTS of both wrists which was mild to moderate and affecting the median nerves. Private medical records from December 2009 to February 2010 indicate that the Veteran had full range of motion of the lumbar spine, but that stiffness was present. Records of the Coastal Health Occupational Pain Management Clinic show that in December 2010 it was noted that the Veteran had had a left carpal tunnel release but numbness continued, and such surgery had been recommended for numbness of the right hand. The Veteran reported "working with personal business but only doing office work now." In January 2011 in addition to having low back pain the Veteran was seen for morbid obesity, carpal tunnel syndrome (CTS), left knee osteoarthritis, and cervical DDD. Electrodiagnostic tests revealed possible radiculopathy in the C8 nerve distribution with paresthesia in the left hand causing trouble holding on to objects, while X-rays demonstrated cervical DDD and some DJD. He also complained of right knee pain. A February 2011 right knee MRI at the South Baldwin Regional Medical revealed patellar tendonitis, and degenerative arthrosis of the patellofemoral joint with fissuring and irregularity of the lateral facet articular cartilage. A March 2011 bone scan at the South Baldwin Regional Medical revealed findings of osteomyelitis of the left great toe to include the phalanges and first metatarsal head, as well as arthritis of the right 1st metatarsophalangeal joint. Records of the Mobile Infirmary Medical Center show that due to diabetes in April 2011 he was evaluated for an amputation of the left great toe. In August 2011 the Veteran had further surgical debridement of the left foot and that in October 2011 the Veteran's second left toe was amputated due to a diabetic ulcer. A July 2011 VAOPT record shows that the Veteran had a history of surgery 2 years earlier for left CTS but he still had symptoms of tingling and numbness. Electrodiagnostic testing had revealed median neuropathy of both wrists, greater on the right, as well as ulnar neuropathy at both elbows. Surgical decompression of the right ulnar nerve, at the elbow, was recommended. The Veteran was admitted to the South Baldwin Regional Medical Center in January 2013 for chest pain. It was noted that he had had a coronary artery bypass graft (CABG) in December 2012. His medical history included chronic obstructive pulmonary disease (COPD), hypertension, peptic ulcer disease (PUD), depression, knee replacements, opioid dependency, hepatitis C, and GERD. The admitting impressions were atrial fibrillation with associated chest pain; chest pain with shortness of breath (SOB); and coronary artery disease (CAD); and COPD. In March 2013 the Veteran underwent VA surgery consisting of right middle finger trigger release; right carpal tunnel release; and right ulnar nerve decompression. On VA neurology examination in May 2013 the Veteran's electronic medical records were reviewed. The diagnoses included early L4-5 radiculopathy with no functional limitations. The Veteran reported having episodic numbness of his legs, typically when sitting or walking. He related having low back pain which radiated to his knees. He related that past back surgery in 2009 had not provided much relief. Current electrodiagnostic tests revealed findings consistent with mild to moderate L4-5 radiculitis, and there seemed to be some evidence of early stage radiculopathy. He complained of moderate intermittent pain, paresthesias, and numbness of both legs. On physical examination strength was normal at all joints of the lower extremities and there was no muscle atrophy. Deep tendon reflexes were all normal in the lower extremities. Sensation was normal in the upper anterior thighs, and at the thighs and knees but decreased at both ankles and absent in both feet. His gait was slightly antalgic due to left toe amputations. He had mild sciatic neuropathy, bilaterally. He did not use an ambulatory aid. The Veteran reported that his peripheral neuropathy caused difficulty bending and lifting. On VA examination in July 2013 the Veteran's records were reviewed. He was 72.5 inches in height and weighed 374.6 pounds. His gait was slightly antalgic due to left foot surgery, and it was wide-based. He walked without any assistive device. Because the Veteran refused to allow range of motion while standing, all such testing was done while sitting. The Veteran reported that his low back pain had worsened in the last couple of years. However, the examiner also noted that the Veteran had other medical conditions that contributed to his overall symptomatology, including morbid obesity, diabetes with left foot surgery, gout, and ankle deformity. On physical examination the Veteran had forward flexion to 90 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. No further limitation due to pain on motion or after repetitive testing was noted to be present. The combined range of motion was 165 degrees. No guarding or muscle spasm was found to be present, and IVDS, incapacitating episodes, and flare-ups were not noted. Strength was normal on hip flexion and knee extension, bilaterally, and 4/5 on plantar flexion and dorsiflexion of the ankles, and there was no muscle atrophy. Reflexes were normal at the knees and ankles. Straight leg raising was negative, bilaterally. Sensation was normal in the upper anterior thighs, and at the thighs and knees but decreased at both ankles and in both feet. His radiculopathy was manifested by mild pain and numbness in both legs. The examiner diagnosed the Veteran as having L5-S1 DDD, based on X-rays taken at the time of the examination. An October 2014 letter from the Laser Spine Institute states that a lumbar MRI had revealed bulging discs, DDD, spinal stenosis, foraminal narrowing, and facet disease. He was a potential candidate for a minimally invasive spinal procedure. A February 2016 private left knee MRI injury of the anterior and posterior cruciate ligaments and the medial meniscus. On VA examination in August 2016 of the Veteran's left knee it was found that he had moderate functional limitation due to left knee osteoarthritis and menisceal tear. It was noted that he regularly used a left knee brace. VA Social Work and Industrial Survey was conducted in October 2016 at which time the Veteran was interviewed and his entire VA record was reviewed. The Veteran's extensive list of medications was reported which included medication for control of cholesterol and blood pressure, diabetes and a diuretic. He was a high school graduate and his military occupational specialty had been a telecommunications center specialist. He had work experience as a painter and dry wall installation for approximately 30 years. He had been unemployed for 5 to 10 years and stated that his back and knee pain prevented him from working. He specifically stated that he "can't do the standing and climbing that I need to do when I paint, especially due to my knee. I can't stay focused a long time because of the pain, and about 20 minutes after I take that pain medicine I have to go lay down." The examiner stated that the Veteran's disabilities did not prevent him from working. The examiner noted that the Veteran had been "self-employed for over 25 years, owning and operating a painting and dry-wall installation business." He reported that his sons still work in the business. The examiner opined that the Veteran could likely work in an environment where an opportunity for movement is offered but heavy lifting was not required. He was alert and oriented with intact judgement. There is no evidence of psychosis or a thought disorder. He is able to communicate effectively and follow, at least, simple instructions and complete routine tasks. The VA Director of Compensation Services rendered a determination in April 2017. The Director noted that past medical history was "shown for but not limited to: type II diabetes mellitus, chronic low back pain, anemia, peripheral venous insufficiency, hypertension, retinopathy, carpal tunnel syndrome, lumbar radiculopathy, diabetic nephropathy, obstructive sleep apnea, and morbid obesity." It was stated that VA examinations from July 2002 showed that the Veteran asserted that he injured his back during service. Objective findings revealed that he moved about the room with a satisfactory gait pattern without any spasm and some reduced range of motion. In May 2013 he indicated that he had stopped working as a house painter in 2010. As to functional occupational impact, the Veteran reported difficulty with bending and lifting. In July 2013 an examiner indicated that the Veteran's back and leg disorder had no occupational impact. An October 2016 social work and industrial survey also indicated the Veteran's back and leg conditions did not affect his ability to work. The Director concluded stating that based on the totality of evidence of record, extraschedular entitlement for the aforementioned service-connected disabilities due to individual severity or collective impact pursuant to either 38 C.F.R. § 4.16 or § 3.321 was not found. The evidence of record showed lumbar degenerative joint disease and bilateral lower radiculopathy of a mild severity which did not indicate that either condition was so unique as to render the rating schedule impractical. No evidence is proffered to show a marked interference with employment due solely to the bilateral extremity peripheral neuropathy. No frequent hospitalization was shown either by evidence of record or inference. Pursuant to 38 C.F.R. § 4.71a there was ample opportunity for assessment of higher evaluations and 38 C.F.R. § 4.20 provided the opportunity for analogous ratings. The VA examiners had indicated that the back and leg conditions did not affect the Veteran's ability to work. Therefore, no entitlement to an extraschedular evaluation is warranted pursuant to 38 C.F.R. § 3.321(b)(1). There are several non-service-connected disabilities, which had not been differentiated from service-connected conditions (Cathell v. Brown). Therefore, since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran's unemployability (Blackburn v. Brown) entitlement to extraschedular TDIU rating was not warranted. A June 2017 report of an office consultation by Dr. C. C. shows that the Veteran's gait was slow and cautious. He could flex his back to 30 degrees and stopped at that point due to pain. He could arise on his toes and stand on his heels. Neurologically, there was no motor weakness in his lower extremities. Reflexes were hypoactive. He reported global sensory disturbance of varying degrees in both lower extremities. The impression was lumbar spondylosis at L4-5. The physician was not inclined to recommend open surgery but minimally invasive surgery could be considered. An Extraschedular Rating in Excess of 10 Percent for Chronic Low Back Pain With DJD of L5/SI The Board notes that ordinarily in the evaluation of service-connected disabilities the VA 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); 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining entitlement to an extraschedular rating. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, it must be determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and the disability picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to VA's Director of Compensation Services to determine whether the disability requires the assignment of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for the Federal Circuit had held that an extraschedular rating may be assigned which considers the combined impact of multiple service-connected disorders. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); overruling Johnson v. Shinseki, 26 Vet. App. 237, 248 (2013). However, in Yancy v. McDonald, 27 Vet. App. 484, 496 (2016) it was held that when there are multiple service-connected disorders the Board's jurisdiction was limited to only those service-connected disorder(s) on direct appeal because it lacked jurisdiction to consider whether extraschedular referral for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to determine the proper schedular rating for a disability not on appeal. Yancy, 27 Vet. App. at 496 (2016). In this regard, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities. See Final Rule, 82 Fed.Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed.Reg. 23228, 23232 (Apr. 20, 2016). This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018 or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. Thus, only the service-connected chronic low back pain with DJD at L5-S1 will be considered for potential extraschedular evaluation. Caution must be taken not to conflate the criteria in 38 C.F.R. § 3.321(b)(1) with the criteria for a total disability rating based on individual unemployability (TDIU) in 38 C.F.R. § 4.16(b). "[T]he effect of a service-connected disability [is] measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) [than] for purposes of a TDIU [rating] under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former requires marked interference with employment, the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. at 117 (extraschedular consideration under § 3.321 may be warranted for disability that presents a loss of earning capacity that is less severe than total unemployability). Initially, the Board notes that the determination of the VA Director of Compensation was self-described as an advisory opinion. However, it is in actuality an adjudication and is not medical evidence which, in itself, the Board can rely upon in reaching a determination. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015) and Kuppamala v. McDonald, 27 Vet. App. 447, 455-56 (2015). Also, it appears that the determination of the Director denying extraschedular entitlement to a rating in excess of 10 percent for the service-connected low back disorder relied, in part, upon there being potentially higher disability ratings which could be assigned, should the disability increase in severity in the future. However, in a recent decision rendered after the Director's determination, in King v. Shulkin, 2017 U.S. App. Vet. Claims Lexis 1829 (Dec. 21, 2017) the Court held "that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis." As to this, first, the Board had already referred the case to the VA Director of Compensation. Second, interpreted fairly, the Board finds that higher potential ratings was not a determinative factor in the Director's decision inasmuch as that determination focused primarily on the severity of the service-connected low back disability. Thirdly, the Director's determination is reviewable by the Board and, as such, the ultimate determination is made by the Board, and the Board will not consider the availability of higher schedular ratings in reaching its decision. Also, the holding in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) was that consideration of improvement in disability due to medication is precluded when not provided for in applicable schedular rating criteria. However, that holding was limited specifically to the application of schedular rating criteria and does not preclude such consideration in the context of extraschedular consideration. See Jones v. Shinseki, 26 Vet. App. at 61, footnote 4. The service-connected low back disability does result in occupational impairment but such pecuniary loss is the purpose of VA disability compensation based on average earning impairment and here the evidence does not show that the service-connected low back disability has interfered with employment beyond what is contemplated by the rating criteria. While it is true that the schedular rating criteria do not always address the symptoms specifically described by the Veteran but this alone does not mean that the rating criteria are inadequate. 38 C.F.R. § 4.1 provides "that percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." As to the contention, express or implied, that because the rating criteria are silent as to effects of occupational and daily activities, the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the appellant has not demonstrated that the rating schedule is inadequate in any way. Rather, the VA's Rating Schedule is generally symptom driven. See 38 C.F.R. §§ 3.321(a), 4.1; see also Dedrick v. Shinseki, No. 13-1166, slip op. at 9 (U.S. Vet. App. Apr. 4, 2014)(nonprecedential memorandum decision). The statements or findings of impaired function as to certain activities pertain to and are reflections of the functional limitations that are contemplated by the governing rating criteria and corresponding regulations, e.g., pain, painful motion, limitation of motion, weakness, numbness, and reduced strength. Specifically, a wide range of signs and symptoms are contemplated in the applicable rating criteria, including pain, loss of motion, painful motion, muscle spasm, ankle jerks, and other neurological findings as to strength and sensory function. Logic dictates that all of these types of symptoms will, necessarily, impact upon functional activities. Thus, both the symptoms and the logically anticipated limitation of functional activities are contemplated by the rating criteria. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40 (2013), 4.45. In fact, 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as sciatic neuritis, unstable or malaligned joints, and crepitation. The level of severity and symptomatology of the Veteran's service-connected disability of the thoracolumbar spine have been carefully compared with the established criteria found in the rating schedule. In essence, the Veteran's symptoms, which result in functional impairment including limitation of motion due to pain, are addressed by the rating criteria under which such disabilities are rated. Next, the Board will address functional impairment as relate to specific activities. One such activity is cooking. Impairment in this activity usually involves disability of the shoulders and arms and not the low back. To the extent that cooking requires flexion or other motion of the thoracolumbar spine, such specific measure of motion is explicitly part of the schedular rating criteria. As for functional impairment with dressing oneself, the specific acts of bending or twisting of the back that may be required to dress oneself are contemplated by the schedular rating criteria based on limited and painful motion. For example, to the extent that dressing oneself requires lumbar flexion, such motion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. To some lesser extent, dressing oneself may require lumbar extension, lateral flexion, and rotation, which are all part of the schedular rating criteria under combined range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. As to functional impairment with respect to exercise, to the extent that exercise involves prolonged standing, sitting, walking, bending, disturbance of locomotion, or instability of station, such functional impairment has been considered by the Board and is contemplated under the schedular rating criteria. See 38 C.F.R. § 4.45 (disturbance of locomotion, instability of station, and interference with sitting, standing, and weight-bearing are considered as functional limitation under the schedular rating criteria). As to potential functional impairment with respect to grocery shopping, or shopping generally, including any possible use of a cart when shopping, as well as lifting, including the lifting of day-to-day objects, the slight lateral or twisting movements required for lifting objects such as groceries or other day-to-day objects (to the extent the lifting is performed by the thoracolumbar spinal segment rather than only arms and shoulders) may suggest lifting of the objects in the position of slight forward flexion, although simply lifting objects may equally involve minimal thoracolumbar flexion or movement when lifting by primarily using the legs, arms, and shoulders. As such, to the extent that these activities may involve thoracolumbar flexion, such forward flexion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. To the extent that lifting shopping items or other items may require extension, lateral flexion, and rotation, such movements are part of the schedular rating criteria under combined range of motion. As to any possible functional impairment with respect to house cleaning, to the extent that house cleaning involves any type of lumbar spine motion, all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine are considered in arriving at a rating for the orthopedic manifestations of a spinal disorder. See 38 C.F.R. § 4.71a, Plate V. To the extent that any of these activities causes incidental pain, such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (the schedular rating criteria contemplate limitation of spine motion with or without symptoms such as pain, whether or not it radiates); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472, 479 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic codes); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). Accordingly, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology as well as functional impairment due to the service-connected low back disability. Thus, the Board cannot conclude that the schedular rating criteria are inadequate. Consequently, the Board will not overrule the determination of the VA's Director of Compensation Service. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). TDIU Rating Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies), provided that he has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and it is determined that the service- connected disabilities preclude substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. If a veteran fails to meet the percentage standards set forth in § 4.16(a) but is unemployable by reason of service-connected disabilities, the RO should submit the claim to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the determination, VA may not consider non-service-connected disabilities or advancing age. 38 C.F.R. §§ 3.341, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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 circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). Analysis The Veteran is service-connected for chronic low back pain with degenerative joint disease L5/SI, rated 10 percent disabling; radiculopathy of the right lower extremity, rated 10 percent disabling; and radiculopathy of the left lower extremity, also rated 10 percent disabling. There is a combined disability rating, including the bilateral factor, of 30 percent. Thus, the Veteran does not meet the schedular criteria for a TDIU rating and consideration must be given to extraschedular entitlement. As to this, the VA's Director of Compensation Services has determined that the Veteran is not entitled to a TDIU rating on an extraschedular basis. The Veteran has asserted that his service-connected low back disorder and radiculopathy in the lower extremities have been primarily responsible for his inability to work. However, for the following reasons and bases the Board finds that the record does not reflect that these disabilities, individually or in combination, has had this effect. The Veteran's SSA records reflect that he was considered disabled in 1997 due to a combination of his service-connected low back disorder and his nonservice-connected diabetes and obesity. Also considered in that decision was the Veteran's age. However, as stated, the Veteran's age is not a factor which may be considered in determining entitlement to a TDIU rating, even on an extraschedular basis. Also considered in that SSA decision was the availability of job opportunities in the national economy but, again, this is not a factor which may be considered in determining entitlement to a TDIU rating, even on an extraschedular basis. Further analysis with respect to the SSA decision is not possible because, other than quoted language in the SSA decision, the actual medical records supporting that award are not available. In sum, it is undisputed that the SSA determination applied different law and regulations than those which must be applied by VA adjudicators (the RO, the Director of Compensation Services, and the Board). The SSA award indicated that the Veteran had last worked in 1997; however, subsequent evidence of record before the VA shows that he had continued to work for many years and even as recently as 2010, when he reported doing office work. Even the work history recorded at the time of the 2016 VA Social and Industrial Survey indicates that the Veteran had continued to work after the SSA award and up until at least 2006, at which time he reported that it was a combination of his service-connected back and nonservice-connected disabilities of the knees which prevented him from working. Furthermore, the extent to which the Veteran himself actually believes that he stopped working due to his service-connected disabilities is questionable given his own multiple statements regarding his continued involvement in the painting and dry-wall business that he formerly operated but turned over to his sons while apparently retaining some supervisory authority, although not actively participating in actual painting or dry walling activities. In fact, at one point he even reported that it was a combination of impairment of his back and his knees which adversely affected his ability to work. His nonservice-connected disabilities of the knees are well documented and are of such severity as to have necessitated surgical intervention. The Board finds that although the evidence clearly demonstrates that the appellant's disabilities limit his ability to work, it does not demonstrate that his service-connected disabilities alone are of sufficient severity to produce unemployability. In addition, the Board finds the opinion expressed at the VA Social and Industrial Survey to be persuasive and that the evidence clearly demonstrates that despite functional impairment due solely to the service-connected low back and radiculopathies of the lower extremities the appellant is physically able to perform sedentary work. Although the appellant disputes whether his employment and educational background allow him to qualify for sedentary work, the appellant does not argue that he is mentally unable to perform sedentary work. As to the Veteran's argument that his high school education and history of labor-intensive jobs preclude him from obtaining a sedentary position, the Board finds that while the Veteran's education and work experience may limit his employment opportunities, there is no evidence demonstrating that a lack of college degree would preclude the Veteran from all forms of sedentary employment. The Veteran has not submitted any evidence demonstrating that his level of education and his past employment experience categorically preclude him from sedentary employment that would provide more than marginal income. See Pederson v. McDonald, No. 13-1853, slip op. (U.S. Vet. App. Feb. 13, 2016) (en banc) (citing 8 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits. . . ."); Fagen v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination)). Moreover, the record does not demonstrate, nor does the appellant argue, that there is anything unique about the appellant's educational background or abilities that would preclude him from obtaining sedentary employment. In this connection, there is no legal requirement that the Board make specific findings as to which particular types of sedentary employment the Veteran is capable of performing. Moreover, "a TDIU determination does not require any analysis of the actual opportunities available in the job market." See Pederson v. McDonald, No. 13-1853, slip op. (U.S.Vet.App. Feb. 13, 2015) (en banc) (quoting Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011)). Specifically in this case, following the SSA determination both the Veteran's low back disability as well as his nonservice-connected diabetes mellitus have worsened. However, it is the diabetes mellitus which has worsened much worse than the low back disability and to such an extent that he developed diabetic ulcers of his feet, eventually necessitating amputation of the first two toes of his left foot, which in turn has caused him to develop an abnormal gait. Moreover, his obesity has been described as having been a contributing factor in both the progression of his diabetes and in his overall functional impairment. Clinicians have specifically noted that some of the decrease in his mobility is due to his obesity. Even worse, he has developed diabetic neuropathy. For example, he now has significant neurological impairment of his upper extremities, as confirmed by electrodiagnostic testing. Whether this is due to diabetic neuropathy or to nonservice-connected disability of the cervical spine with radiculopathy of the upper extremities is not a matter for determination by the Board. Rather, the fact remains that such impairment does exist. While this impairment together with impairment of his feet from nonservice-connected diabetes, together with his service-connected low back disorder and radiculopathy of each lower extremity might preclude him from sedentary employment, the Board must emphasize, again, that impairment from his obesity and diabetes, even with additional significant impairment from nonservice-connected COPD and heart disease, may not be considered in determining whether he is precluded from obtaining or retaining substantially gainful employment. In rendering the decision herein the Board has not impermissibly considered his non-service-connected disabilities. Rather, the Board has considered, as it is required to do, all the relevant medical evidence regarding the appellant's employability. To the extent the Veteran may attempt to argue that the Board must specifically identify the degree to which his service-connected disabilities, as opposed to his non-service-connected disabilities, impair his ability to work, such an analysis is not required in this matter. See Pederson v. McDonald, No. 13-1853, slip op. (U.S.Vet.App. Feb. 13, 2015) (en banc). The Board specifically finds that the Veteran's service-connected disabilities impair the ability to work, but that the level of impairment does not cause unemployability. Again, as noted above, there is no dispute that the Veteran's disabilities, service connected or not, impair his ability to work. The Board, however, ultimately concludes that the Veteran is not precluded from all types of employment due to service connected disabilities. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent for service connected chronic low back pain with DJD at L5/SI on an extraschedular basis is denied. A TDIU rating is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs