Citation Nr: 18129397 Decision Date: 08/24/18 Archive Date: 08/24/18 DOCKET NO. 15-37 524 DATE: August 24, 2018 ORDER Entitlement to service connection for sacroiliitis is granted. Entitlement to a rating in excess of 20 percent for lumbar disc degeneration with status post compression fracture from March 26, 2015 to November 20, 2015 is denied. Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome (IVDS), previously rated as lumbar disc degeneration with status post compression fracture, from November 20, 2015 is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s chronic sacroiliitis is at least as likely as not related to his active military service. 2. From March 26, 2015 to November 20, 2015, symptoms of the Veteran’s thoracolumbar spine disability have not included or more nearly approximated forward flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 3. From November 20, 2015, symptoms of the Veteran’s thoracolumbar spine disability have not included unfavorable ankylosis of the entire thoracolumbar spine or any incapacitating episodes. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sacroiliitis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a rating higher than 20 percent, from March 26, 2015 to November 20, 2015, for the Veteran’s lumbar disc degeneration with status post compression fracture, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). 3. The criteria for a rating higher than 40 percent, from November 20, 2015 thereafter, for the Veteran’s IVDS, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from October 2008 to October 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied service connection for chronic sacroiliitis and granted an increased rating of 20 percent for service-connected lumbar disc degeneration with status post compression fracture effective March 26, 2015, the date of his claim. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal, via a VA Form 9. In his October 2015 substantive appeal, the Veteran requested a live videoconference hearing before the Board. The Veteran was scheduled for a hearing for April 12, 2014; however, prior to the hearing, the Veteran submitted correspondence where he stated that he wished to cancel his hearing and would like to continue on with the appeal process. Accordingly, the Veteran’s hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d) (2017). In September 2016, the RO increased the rating to 40 percent, effective November 20, 2015, creating a staged rating as indicated on the title page. The RO also recharacterized the disability as intervertebral disc disorder, which the Board has characterized as intervertebral disc syndrome or IVDS, consistent with the applicable regulation. 1. Entitlement to service connection for chronic sacroiliitis Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his sacroiliitis is related to his active military service. Service treatment records (STRs) do not reflect complaint, treatment for, or a diagnosis of sacroiliitis. Post service, March 2015 radiology testing revealed a hypointense signal in the iliac aspects of the sacroiliac joints bilaterally which the physician found likely represented chronic sclerosis which can be seen with chronic sacroiliitis. A November 2015 medical opinion from a private medical professional indicates that it was her medical opinion that the Veteran’s sacroiliitis was most likely caused by or a result of (51 percent probability or better) his duties as an infantryman and machine gunner. She noted that he was service-connected for a back disability as well due to service. She also noted that he had two deployments while on active military duty. A September 2016 medical opinion was provided by a VA physician where he found that the Veteran’s sacroiliitis is less likely than not (less than 50 percent) proximately due to or the result of intervertebral disc disorder with radiculopathy. As rationale, he reported that the Veteran was not diagnosed with sacroiliitis until November 2015. He stated that there is a strong genetic component to the development of spondyloarthritis/spondyloarthoropathy. He concluded that consequently, the condition of the sacroiliitis and the IVDS with radiculopathy are two different and unrelated conditions caused by two different mechanisms with no relationship to each other. VA treatment records reflect treatment for sacroiliitis. Upon review of the evidence of record, the Board finds that service connection for sacroiliitis is warranted. Initially, the Board finds that the Veteran has a diagnosis of sacroiliitis as reflected from the March 2015 radiology testing. Thus, the Veteran has met the current disability requirement. The only medical opinion of record that addresses whether the Veteran’s sacroiliitis is related to service establishes a nexus between his disability and his military occupational specialty. Although the medical professional who submitted the November 2015 opinion did not provide an extensive rationale for her conclusion that the Veteran’s sacroiliitis was most likely caused by his military occupational specialty, reading her opinion in the context of the evidence of record reflects that the medical professional concluded that her findings were consistent with the Veteran’s service. Thus, the opinion is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner's journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Furthermore, the Veteran’s service records, and his statements support the finding that his military occupational specialty was as an infantryman and machine gunner. Thus, it is feasible that he carried heavy loads on his back and hips. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Given the evidence in favor of service connection before the Board, a remand for another examination or opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Given the adequate medical opinion, the evidence is at least evenly balanced as to whether the Veteran’s sacroiliitis is related to his in-service duties. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sacroiliitis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, consideration of other theories of entitlement is unnecessary. 2. Entitlement to a rating in excess of 20 percent for lumbar disc degeneration with status post compression fracture from March 26, 2015 to November 20, 2015. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” In the case of the Veteran’s spine disability from November 20, 2015, however, the Board is granting the highest rating possible under the applicable diagnostic codes based on limitation of motion, with higher ratings requiring ankylosis. As explained below, any error in not conducting Correia-complaint range of motion testing for this time period is therefore harmless. In addition, for the reasons in the discussion below, any error in not conducting Correia-compliant testing with regard to the period prior to November 25, 2015 is harmless as well. The Veteran’s service-connected lumbar disc degeneration with status post compression fracture is evaluated as 20 percent disabling from March 16, 2015 to November 20, 2015 under DC 5237. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran has a diagnosis of Intervertebral Disc Syndrome. 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 dysphasia; 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. See Note 5, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2016). Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Any associated neurological abnormalities are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. When rating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran contends that his lumbar spine disability warrants an increased evaluation. A June 2015 disability Benefits Questionnaire (DBQ) report reflects that the Veteran reported continuous back pain. On examination, forward flexion ended at 50 degrees with painful motion beginning at 50 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Following repetitive-use testing with three repetitions, the Veteran’s forward flexion continued to end at 50 degrees. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine with no guarding or muscle spasm. At the time of this evaluation, the Veteran did not have a diagnosis of IVDS of the thoracolumbar spine. The examiner noted that the Veteran used a cane occasionally as an assistive device. The examiner reported that the Veteran did not have any functional loss and/or functional impairment of the thoracolumbar spine. VA and private medical treatment records reflect continued treatment for the Veteran’s lumbar spine disability. Based on the foregoing, the Board finds that from March 16, 2015 to November 2015, a rating higher than 20 percent for the Veteran’s lumbar spine disability is not warranted. The June 2015 DBQ report reflects that the Veteran was able to perform forward flexion of the thoracolumbar spine up to 50 degrees and was able to perform repetitive-use testing with three repetitions where his forward flexion remained the same. Additionally, he did not have any functional loss and/or functional impairment of the thoracolumbar spine. It is noted that the June 2015 DBQ report did not provide or indicate the range of motion measurements for testing with weight bearing and in non-weight bearing. However, to the extent that this was not Correia-compliant, significantly, the examination report documented that there was evidence of pain at 50 degrees and there was no functional loss/and or functional impairment such as pain on movement; thus, no indication that such range of motion findings would result in a rating higher than 20 percent under the General Rating Formula. Such omission in this regard was therefore harmless. In addition, there was no diagnosis of IVDS at that time. The examiner specifically found that the Veteran did not have IVDS and the Veteran does not contend, and the evidence does not reflect, that he suffered from incapacitating episodes. Thus, an increased rating based on IVDS is not warranted. Additionally, for this period, the Board has also considered whether the Veteran had any associated objective neurological abnormalities with his lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, the evidence of record from March 16, 2015 to November 20, 2015 does not indicate that the Veteran had any neurological abnormalities associated with his lumbar spine disability. Notably, the June 2015 DBQ report specifically found that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy, and that the Veteran had no other neurologic abnormalities or findings related to a thoracolumbar spine condition. For the foregoing reasons, the preponderance of the evidence reflects the symptoms of the Veteran’s lumbar disc degeneration with status post compression fracture do not more nearly approximate the criteria for a rating higher than 20 percent from March 16, 2015 to November 20, 2015. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 3. Entitlement to a rating in excess of 40 percent for IVDS, previously rated as lumbar disc degeneration with status post compression fracture, from November 20, 2015 thereafter. From November 20, 2015 and thereafter, the Veteran is rated as 40 percent disabling under DC 5237. A November 2015 DBQ report reflects that the Veteran reported that he continued to have pain in his back. The Veteran reported flare-ups that was described as sharp pain in his lower back. He reported that at times, his back would lock up on him. The Veteran also reported functional loss/functional impairment of the thoracolumbar spine. He reported that he feels limited due to his disability and he is unable to train when his pain flares up [he owns a gym]. He reported that other trainers do all the work. On examination, forward flexion ended at 15 degrees and the examiner noted that range of motion itself contributed to functional loss. The examiner noted that the Veteran reported sharp pain in his lower back that has gotten progressively worse, occurred more often, and limited his activities. Pain was noted on examination but the examiner reported that it did not result in or cause functional loss. There was no evidence of pain with weight bearing. Additionally, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated with soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions. Additional loss of unction or range of motion after these repetitions were noted; however, his forward flexion remained the same. The examiner noted that pain and weakness caused functional loss. The examiner reported that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time and with flare-ups. The examiner reported that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. The examiner noted that the Veteran had disturbance of locomotion, interference with sitting, and interference with standing. There was no ankylosis of the spine and there were no neurologic abnormalities. The examiner noted that the Veteran had IVDS. The Veteran reported that used a brace and cane regularly as assistive devices. Based on the foregoing, the Board finds that from November 20, 2015 and thereafter, a rating higher than 40 percent for the Veteran’s lumbar spine disability is not warranted. In order to warrant an evaluation in excess of 40 percent for the Veteran’s lumbar spine disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. Here, VA treatment notes, private treatment records, and the November 2015 DBQ do not indicate that there was unfavorable ankylosis of the entire thoracolumbar spine for the appeal period. There is no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. The medical findings contain specific notations which indicated that there was no ankylosis. With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Accordingly, 38 C.F.R. §§ 4.40 and 4.45 are not for consideration. The Board notes that the evidence reflects that the Veteran had IVDS as of the November 2015 DBQ. However, the Veteran does not contend, and the medical evidence of record does not show, that he suffered from incapacitating episodes due to IVDS. As such, an increased rating based on incapacitating episodes is not warranted. As to neurological manifestations of spine disability pursuant to Note (1) of the General Rating Formula, the Board finds that this provision provides no basis for assignment of any higher, or separate, compensable rating(s) in addition to those already assigned. In September 2016, the RO granted service connection for bilateral radiculopathy in the lower extremities and assigned 10 percent ratings, effective November 20, 2015. To date, the Veteran has not appealed the ratings assigned and the issue as to whether higher ratings. See John v. Shulkin, No. 16-2487 (Vet. App. Jan. 31, 2018) (mem dec) (although the Veteran was presumed by virtue of his appeal of the RO's initial denial of an increased rating for his low back disability to have been seeking the maximum benefit allowed by law for that disability, and that evaluation issue remained in controversy where less than the maximum benefit had been awarded, “that presumption did not sweep up the jurisdictionally separate radiculopathy claim into his appeal of the increased low back evaluation;” the Veteran was required to file a separate NOD as to the radiculopathy rating assigned by the AOJ if he wished to initiate appellate review of that issue and the Board did not clearly err in finding that issue not before it on appeal) (citations omitted). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the claimant’s disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. Id. at 115-16. If the claimant’s disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Id. at 116. But see Extra-schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830, 57,833 (Dec. 8, 2017) (“We agree that the ROs should make these fact-intensive decisions in the first instance, and we have therefore revised the rule by eliminating the phrase ‘upon field submission’ and the word ‘referred.’”). In this case, the Veteran has contended that he experiences difficulties with pain, sitting, and standing, due to his thoracolumbar spine disability. The Board finds that these symptoms are contemplated by the applicable schedular rating criteria. Although the symptoms are not specifically referenced in the rating criteria, such symptoms are manifestations of pain. The General Rating Formula indicates that its criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. This broad language in the criteria contemplates all of the symptoms indicated by the Veteran even though they are not specifically listed. Moreover, pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to “joint pain in general” and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40, 4.45. Cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). The Board therefore need not consider whether the Veteran’s thoracolumbar spine disability cause marked interference with employment or frequent hospitalization for purposes of an extraschedular rating. Thus, referral for consideration of an extraschedular rating for the Veteran’s thoracolumbar spine disability is not warranted. See 38 C.F.R. § 3.321 (b)(1) (2017). Finally, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the record as part of the Veteran’s higher rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is “cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits”). The Veteran reported that he worked at a gym that he owned. While the Veteran has indicated that his thoracolumbar spine disability has caused some difficulties at his job, the evidence of record, including the Veteran’s own statements, do not indicate that his thoracolumbar spine disability has precluded or tended to preclude him from securing and following substantially gainful employment. On the contrary, during his examinations, the Veteran indicated that he was employed and did not indicate that such employment was marginal, based either on income or on a facts found basis to include employment in a protected environment. The issue of entitlement to a TDIU has therefore not been raised. For the foregoing reasons, the preponderance of the evidence reflects the symptoms of the Veteran’s IVDS do not more nearly approximate the criteria for a rating higher than 40 percent from November 20, 2015 and thereafter. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel