Citation Nr: 1827573 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 10-37 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 40 percent for service-connected lumbosacral strain, not including neurological manifestations in the lower extremities. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis prior to November 25, 2013. 3. Entitlement to TDIU on a schedular basis from November 25, 2013. REPRESENTATION Appellant represented by: Joseph R. Moore WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified at a videoconference hearing in June 2011 before a now retired Veterans Law Judge (VLJ). A transcript of that hearing is of record. In March 2015, the Veteran was notified that the VLJ who conducted his hearing was no longer an employee of the Board and he was offered the opportunity for a new hearing. He declined the additional hearing in an April 2015 correspondence. An unappealed November 2013 rating decision granted service connection for radiculopathy of the lower extremities related to his service-connected back disability, rated 20 percent on the left and 10 percent on the right from November 25, 2013. Those issues are not currently before the Board. This case was before the Board in December 2015 when it was remanded for additional development consistent with a March 2015 Joint Motion for Remand. On May 26, 2017, the Board denied the issues listed on the title page. On July 12, 2017, the Veteran's attorney filed a Motion to Vacate the May 26, 2017 Board decision due to an administrative error whereby the Board granted a stay of adjudication in April 2017, which allowed the submission of evidence through July 25, 2017. In December 2017 the Board vacated the May 2017 Board decision to resolve the due process error. The Board also found that the Veteran presented good cause for an additional 30 day extension from the date he was notified that his Motion to Vacate was granted in order to submit argument and evidence. In December 2017, the Veteran through his attorney submitted a waiver of RO review of additionally submitted evidence. As indicated on the title page of this decision/remand and as will be further discussed below, the issue of entitlement to TDIU has been bifurcated. VA is free to dismember a claim and adjudicate it in separate pieces. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). The issue of entitlement to TDIU on an extraschedular basis prior to November 25, 2013 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At no time during the appeal period is the Veteran's lumbosacral strain shown to have been manifested by symptoms consistent with unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of 6 weeks or more in a 12 month period, or neurological symptoms (other than radiculopathy of both lower extremities) warranting separate compensable ratings. 2. From November 25, 2013 the Veteran meets the schedular requirement for TDIU, and his service-connected disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 40 percent for the service-connected lumbosacral strain have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. From November 25, 2013 the schedular criteria for an award of TDIU are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. I. Duties to Notify and Assist The duty to notify has been met. See December 2009 VCAA correspondence; June 2011 video hearing transcript; and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran, nor his attorney, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). Service treatment records have been obtained. VA treatment records and all other post-service treatment records adequately identified by the Veteran were also obtained. This includes specified records from Christi Hospital in Wichita, Kansas. The Veteran was afforded several VA examinations throughout the pendency of the claim. The most recent examination was conducted in December 2016. With respect to the December 2016 VA examination, the Board is cognizant that the VA examination did not address concerns raised in Correia v. McDonald, 28 Vet. App. 158 (2016) (providing that regulations require joint examinations test for pain on active and passive motion and in weight-bearing and non-weight-bearing). The examiner noted that the Veteran refused testing complying with Correia. However, this oversight is non prejudicial. This is because ratings higher than 40 percent for the spine only consider whether the service-connected back disability is ankylosed or not. So, to the extent an examination is inadequate, only because it fails to document some types of range of motion measurement, the Board finds this inadequacy is non prejudicial. The December 2016 VA examination clearly shows some range of motion, which inherently demonstrates a lack of ankylosis. The fact that other measurements required under Correia are not shown will not change the fact that the back is clearly not ankylosed. An additional remand to get a new examination would be futile. The Board also acknowledges that a private examiner, Dr. P.C., in an August 2017 private opinion questioned the December 2016 VA examiner's omission of intervertebral disc syndrome on the December 2016 VA examination report, which was noted in the other evidence of record. However, such an omission at most could be construed as harmless error as the evidence during the appeal period, to include Dr. P.C.'s August 2017 opinion, does not show that the Veteran had incapacitating episodes of total duration of at least 6 weeks in a 12 month period to warrant a higher rating of 60 percent under Diagnostic Code 5243 for Intervertebral Disc Syndrome Based on Incapacitating Episodes. To the extent that Dr. P.C. took issue with the December 2016 VA examiner's notation that the Veteran did not report flare-ups of pain, the Board has no reason to doubt the examiner's accuracy in documenting the Veteran's reported symptoms during the examination. Moreover, the 40 percent evaluation is the maximum rating assignable for limitation of motion of the lumbar spine under the General Rating Formula, to include the functional equivalent of limitation of motion even when considering all factors discussed in DeLuca v. Brown, 8 Vet. App. 202 (1995). See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Hence, all necessary notification and development has been accomplished, and no further notice or assistance is required to fulfill VA's obligations concerning the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, such as here, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. See 38 C.F.R. § 4.3. VA must assess the level of disability and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 11 (1999); see Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim for an increased rating was filed until VA makes a final decision on the claim. Id. The Veteran's service-connected lumbosacral strain is currently rated 40 percent under Code 5237, for lumbosacral strain. Disabilities of the spine, including those rated under Diagnostic Code 5237, are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The General Rating Formula for rating Diseases and Injuries of the Spine provides a 40 percent rating for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes with a total duration of at least four weeks but less than six weeks during a 12 month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that his service-connected back disability is more severe than indicated by the present 40 percent rating assigned. His increased rating claim was received by VA in November 2009. In statements and testimony in support of his claim, the Veteran asserted that his back had worsened since 2009 and that he was unable to lift over 20 pounds. He also indicated he was unable to work due to his back. The Veteran further noted use of a back brace and cane to help with the pain. VA treatment notes in November 2009 document the Veteran's reports of continuous throbbing knee pain that is aggravated by getting in and out of bed and the car and alleviated with sleep. His pain management regime included Lortab and oxycodone. The Veteran stated he was unable to sit down more than 30 minutes as his back would start hurting and that it hurt when he would bend over or lift more than 3 to 5 pounds. He indicated that physical therapy made his back worse so he discontinued sessions. He denied any bowel or bladder control problem and said the pain basically stayed in his low back but sometimes would radiate down to the leg. A December 2009 letter from B.W. indicates that he had known the Veteran since 2005 and was familiar with the Veteran's back disability. B.W. noted that the Veteran uses a cane to walk and "appears to be in pain when he walks and gets up from a sitting position." During the December 2009 VA spine examination, the Veteran reported injuring his back in 1980 and subsequently injuring his lower back a couple of times, most recently in March 2008 in a car accident. Since the accident, the Veteran reported that his lower back pain was worsening. He stated that he wears a back brace and was prescribed pain medication with some relief. The Veteran reported that he was unable to sit more than 20 minutes, walk more than 2 blocks, or lift more than 5 pounds without aggravating his back pain. The examiner noted that the Veteran's complaints of numbness of the hands and feet, unsteadiness, and falls did not appear to be related to his back and his urinary urgency and nocturia was most likely due to BPH (benign prostatic hyperplasia). The Veteran reported sharp, constant pain in his back with prolonged sitting, standing, or lifting and indicated that the pain occasionally radiated to the right or left leg down to his ankles. The examiner noted no incapacitating episodes of spine disease. On physical examination, the Veteran had normal posture and an antalgic gait. There was no thoracolumbar spine ankylosis. Additionally, no spasm, atrophy, guarding, or weakness was noted. The Veteran did endorse pain with motion and tenderness of the thoracic sacrospinalis. Sensory examination results were normal throughout the upper and lower extremity testing. Reflexes were normal. Range of motion was 0 to 40 degrees flexion, 0 to 15 degrees extension and bilateral lateral flexion, and 0 to 20 degrees bilateral lateral rotation. There was no additional limitation with repetitive motion. After an imaging study of the spine was taken, the diagnosis was degenerative changes of the lumbar spine, no essential change since previous study of March 3, 2008. During his June 2011 videoconference hearing, the Veteran complained of sciatic nerve pain radiating down to the legs. He testified that he was able to lift 2 to 3 pounds and sit up to 30 minutes without back pain. He stated that he is able to walk 2 to 3 blocks before having to stop due to back and leg pain. The Veteran indicated he was prescribed morphine and oxycodone for the pain. During the November 2013 VA examination, the examiner noted a 1998 diagnosis of IVDS (intervertebral disc syndrome). The Veteran reported increased back pain since the last examination. He reported no flare-ups. Range of motion testing showed forward flexion and extension ended at 10 degrees, bilateral lateral flexion ended at 5 degrees and bilateral lateral rotation ended at 10 degrees (all without objective evidence of painful motion). The Veteran was unable to perform repetitive-use testing. The examiner indicated that he was unable to do accurate range of motion exercises as the Veteran was resistant to any range of motion. The examiner noted that the Veteran was able to sit with his knee hip flexed to 80-90 degrees so his prior range of motion results were not accurate. The examiner indicated that the Veteran had functional loss including less movement than normal and incoordination due to his back disability. The Veteran endorsed localized tenderness or pain to palpation of the thoracolumbar spine. There was no muscle spasm but guarding resulted in an abnormal gait. There was no atrophy and reflex and sensation testing was normal. The Veteran indicated he was unable to perform the straight leg raising test and noted moderate intermittent pain in the right lower extremity. There was no ankylosis. The examiner noted that the MRI was significant for DDD (degenerative disc disease) through the lumbar spine showing mild L4 foraminal narrowing, severe bilateral L5 recess stenosis, and S1 lateral recess stenosis and that the Veteran likely has radicular symptoms through this area. However, there were no other neurologic abnormalities or findings related to a thoracolumbar spine condition. The Veteran did not have any incapacitating episodes of IVDS in the previous 12 months. The examiner indicated that the Veteran's back disability would impact his ability to work in that it would "bar him from any employment involving physical labor, standing, lifting, etc. except sedentary." In a remark, the examiner noted that the Veteran was not able to participate in the examination both verbally and for physical examination. He was almost completely resistive to range of motion testing. While he would not allow a straight leg raise, the examiner observed that the Veteran had 5/5 strength to resist it. Similarly, although the Veteran used 2 canes, he maintained a slow, steady antalgic gait throughout the examination. The examiner stated that the impression is that there is significant Waddell's/malingering limiting the examination and causing an incomplete examination. However, the examiner found that the Veteran's lumbar spine degeneration likely does limit the amount of walking he can do as well as repetitive bending, extending, rotation, and lateral movement. He opined that repetitive range of motion testing would decrease his results to a "moderate degree." There was no evidence of bowel or bladder impairment. In a subsequent, November 2013 addendum to this examination report, the examiner stated that the Veteran's electronic claims file had been reviewed and the examination remained unchanged. In December 2013, the Veteran was admitted to Christi Hospital for right leg numbness associated with his back pain. He was noted to be alert and oriented and to walk without assistance. The impression was lumbar radiculopathy and he was discharged to home. VA treatment records dated in March 2015 document the Veteran's ongoing complaints of back pain. The Veteran reported that the pain went down his legs but more on the left. The assessment was chronic low back pain with radiculopathy. Magnetic resonance imaging in February 2013 showed moderate spinal stenosis and foraminal stenosis and bulging disk. The examiner also noted osteoarthritis. During a VA examination in December 2016, the examiner noted the Veteran's diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine. The Veteran reported that his treatment included ice packs but no prescribed medications. He indicated that he fell in 2014 and was told it aggravated his back. The Veteran said he used what he believed was an NSAID of some type for pain. He noted mild pain daily in the lumbar area that can increase with lifting or stooping activities and caused decreased range of motion. He indicated that he does "very limited" household chores. He denied flare ups and said that he uses 2 canes for ambulation. Range of motion testing showed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The examiner indicated that there was pain on the examination for all range of motion testing but it did not result in functional loss. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the thoracolumbar spine. There was no additional loss of range of motion on repetitive use testing. No guarding was indicated, muscle strength testing was normal, there was no muscle atrophy, reflexes were normal, and the sensory examination was normal. Mild bilateral lower extremity radiculopathy was noted but no other neurologic abnormalities were found. There was no ankylosis of the spine. The examiner indicated that the Veteran did not have intervertebral disc syndrome or episodes requiring bed rest. Magnetic resonance imaging of the lumbar spine from October 2013 showed advanced lower lumbar degenerative changes. The examiner opined that the Veteran's back disability would likely prohibit heavy physically demanding occupations. As an aside, the examiner noted that it was hard to tell where the Veteran's true functional range of motion was because the Veteran's demonstration of motion changed with use of the goniometer tool versus not using it. The demonstrated activity in the room differed from that during the examination. Based on the above, the Board finds that the criteria for a rating in excess of 40 percent is not warranted during the entire period on appeal. There is no evidence of ankylosis of the spine. Indeed, the Veteran is able to perform range of motion testing throughout the appeal period. Such does not nearly approximate unfavorable ankylosis of his entire thoracolumbar spine. Additionally, during the December 2009, November 2013, and December 2016 VA examinations the examiners denied the presence of ankylosis. The Veteran does not report otherwise. Although the Veteran reported pain, he also noted that he could bend, even partaking in, albeit limited, household chores. The Board concludes that the criteria for a 50 percent rating under the General Formula are not met or nearly approximated. As far as a rating in excess of 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the evidence does not show, nor does the Veteran allege, that he has been placed on bed rest for the back disability, so as to warrant rating the disability based on incapacitating episodes. Despite the note of IVDS during the November 2013 VA examination, the examiners did not find evidence of IVDS requiring physician prescribed bed rest. Additionally, although the Veteran was seen in the emergency room for back pain, he was discharged to home and there was no evidence of prescribed bed rest. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. Further, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the maximum rating based on limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The only avenue for assigning a higher rating is if ankylosis were shown or if the Veteran had IVDS that met the requirements for a higher (60 percent) rating. Neither is demonstrated. There is additionally no evidence of associated neurological impairments, other than lower extremity radiculopathy, warranting separate disability compensation. The Board has considered the Veteran's statements that his back disability warrants a higher rating and acknowledges that the Veteran is competent to report symptoms of back pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the applicable diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected low back disability has been provided by the VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has not overlooked the fact that the Veteran experiences pain. However, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such was addressed in the aforementioned VA examinations. Although the Veteran has complained of more severely disabling problems, there is no evidence other than as described herein demonstrating any additional loss of motion or functional loss that affected his ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance. The assigned schedular ratings adequately represent the Veteran's degree of impairment based upon the overall evidence of record. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim for an increased rating. Extraschedular Consideration The Veteran's attorney in the December 2017 brief contends that the schedular rating criteria are inadequate to fully describe the functional impact and daily limitation that the Veteran experienced as a result of his lumbosacral strain. He pointed out that the Veteran's lumbosacral strain has resulted in pain, fatigue, weakness throughout the years affecting his ability to perform normal working movement of the body and that these factors have been significant enough to have caused marked interference with the Veteran's ability to work. The Board does have the authority to decide whether the claim should be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected lumbar spine disability. As discussed above the record shows that the symptomatology manifested by the low back disability includes pain, fatigue, weakness, incoordination which resulted in functional impairment such as limitation of motion, and limitation in prolonged standing, walking, lifting, or sitting. These symptoms and their severity are factors already contemplated either in the rating criteria in 38 C.F.R. § 4.71a and other pertinent regulations. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). III. Total Disability Rating based upon Individual Unemployability Total disability means that there is an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation "provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked. Faust v. West, 13 Vet. App. 342 (2000). It does not encompass positions of marginal employment where annual income does not exceed the poverty threshold for one person or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). TDIU may be granted only if the claimant is unable to secure or follow a substantially gainful occupation due to service-connected disabilities rated at less than 100 percent. 38 C.F.R. § 4.16(a). The claimant's level of education, training, and previous work experience must be considered, but age and the effect of disabilities that are not service-connected may not be taken into account. 38 C.F.R. §§ 3.341, 4.16, 4.19; Pederson v. McDonald, 27 Vet. App. 276 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a claimant with one service-connected disability, a TDIU may be granted on a schedular basis if that disability is rated at 60 percent or more. 38 C.F.R. § 4.16 (a). It may be granted on a schedular basis for a claimant with more than one service-connected disability where one such disability is rated at 40 percent or more and the combined rating for all such disabilities is 70 percent or more. Id. With respect to the 60 percent and 40 percent requirements, disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor if applicable, as well as disabilities resulting from common etiology or a single accident, disabilities affecting a single body system, multiple disabilities incurred in action, and multiple disabilities incurred as a prisoner of war are considered as one disability. Id. The 70 percent requirement is derived not by adding together the ratings for all disabilities but by use of a combined ratings table. 38 C.F.R. § 4.25. If TDIU cannot be granted on a schedular basis, it may be granted on an extraschedular basis. 38 C.F.R. § 4.16 (b). Referral to the Director of the Compensation Service is required first, however. Id.; Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran's service-connected disabilities are: lumbosacral strain, rated 40 percent from September 25, 2000; right lower extremity radiculopathy, rated 10 percent from November 25, 2013; left lower extremity radiculopathy, rated 20 percent from November 25, 2013; and right ulna olecranon bone spur, rated zero percent from November 27, 1995. The combined rating is 40 percent prior to November 25, 2013 and 60 percent from that date. As the Veteran's back disability and bilateral lower extremity radiculopathy results from a common etiology, the Board finds that the schedular rating criteria for TDIU have been met from November 25, 2013. 38 C.F.R. § 4.16(a). The remaining question, then, is whether from November 25, 2013 the Veteran's service-connected disabilities render him unemployable. In a May 2008 Application for Increased Compensation Based on Unemployability, the Veteran reported last working in 1985. He indicated that he had not tried to obtain employment since that time. The Veteran noted that he completed high school and one semester of college and had training in a mechanic shop, blueprint reading, and as a journeyman painter. However, the Veteran asserted that he was, at that time, unable to do even office work. On the December 2009 VA examination, the Veteran reported that he had been employed as a painter and had not worked since 1983 due to low back pain. During his June 2011 Videoconference hearing, the Veteran testified that he has completed high school and one semester of college. He recalled that his employment had consisted of numerous temporary jobs and he last worked in 1982, 1983, or 1984. The Veteran stated that he tried to go to school, but had to drop out due to back pain. During the November 2013 VA examination, the examiner noted that the Veteran's thoracolumbar spine condition would bar him from any employment involving physical labor, standing, etc. except sedentary. In July 2014 the Veteran's VA doctor stated that the Veteran would not be able to sit or stand for greater than 30 minutes due to his service-connected lumbosacral strain. On VA examination in December 2016, the examiner stated that the Veteran was restricted to very limited household chores due to decreased range of motion caused by his service-connected lumbosacral strain. The December 2016 VA examiner opined that the Veteran's back disability would likely prohibit heavy physically demanding occupations. In August 2017, the private examiner, Dr. P.C., reviewed the Veteran's file and opined that it is as likely as not that due to the service-connected lower back disability and bilateral lower extremity radiculopathy the Veteran has been incapable of any stable employment even in a sedentary setting, since at least from 1981. The private examiner pointed out that even though the Veteran had a number of non-service-connected issues to include schizophrenia, hypertension, and high blood sugar, as well as knee and shoulder pain, even without these disabilities he would have been unable to work consistently due to his low back and resulting lower extremity impairment. Dr. P.C. further pointed out that the record clearly shows that the Veteran experienced daily exacerbations of severe pain provoked by prolonged standing, sitting, and ambulation, which at times requires the use of assistive devices and opioid pain and medications to treat his pain. The examiner concluded that given the Veteran's very limited educational and occupational history, as well as his high risk of falling, his low back disability and bilateral lower extremity radiculopathy clearly prevented him from maintaining even sedentary employment. In December 2017 the Veteran submitted another Application for Increased Compensation Based on Unemployability, VA Form 21-8940, whereby he indicated that he had temporary jobs in January 1994 and in January 1995. In the instant case, the evidence shows that the Veteran has a high school education with one semester of college and his employment history primarily consisted of doing manual labor. The weight of the evidence presented above shows that the severity of the Veteran's service-connected lumbosacral strain and radiculopathy of the lower extremities render him incapable of obtaining and retaining substantially gainful physical and sedentary employment given his level of education, training, and work experience. Thus, in resolving all doubt in the Veteran's favor, the Board concludes that for the period from November 25, 2013 TDIU is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER A rating in excess of 40 percent for lumbosacral strain is denied. Entitlement to TDIU on a schedular basis from November 25, 2013 under 38 C.F.R. § 4.16(a) is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Prior to November 25, 2013, the Veteran did not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). His service-connected disabilities included lumbosacral strain, rated 40 percent; right lower extremity radiculopathy, rated zero percent; left lower extremity radiculopathy, rated zero percent; and right ulna olecranon bone spur, rated zero percent. The combined rating is 40 percent prior to November 25, 2013. As discussed above, the Veteran lay and medical evidence suggests that the Veteran was unable to maintain physical and sedentary employment due to his service-connected disabilities. See, e.g., May 2008 TDIU claim, December 2009 VA examination, June 2011 Board hearing transcript, and August 2017 private opinion. VA's policy is to grant TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2013). Accordingly, the case is REMANDED for the following action: 1. Refer the case to VA's Director of Compensation Service for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to November 25, 2013. 2. When the development requested has been completed, readjudicate the issue of entitlement to TDIU on an extraschedular basis prior to November 25, 2013. If the benefit sought is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case. The Veteran should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs