Citation Nr: 20006478 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 18-47 016 DATE: January 29, 2020 ORDER Service connection for status post right below knee amputation (BKA) is denied. New and material evidence having been received, the application to reopen the claim of service connection for low back pain is granted. Service connection for degenerative disc disease of the lumbar spine is denied. An increased rating in excess of 40 percent for degenerative disc disease of the cervical spine is denied. A total disability rating by reason of individual unemployability due to service-connected disabilities (TDIU) prior to August 2, 2012, is denied. FINDINGS OF FACT 1. The Veteran’s right knee BKA is not proximately due to or aggravated by his service-connected cervical spine disability. 2. Service connection for low back pain was denied by the Regional Office (RO) in an October 2000 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 3. Since the October 2000 decision denying service connection for low back pain, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s thoracolumbar spine disability is not proximately due to or aggravated by his service-connected cervical spine disability. 5. The Veteran’s status post cervical spine laminectomy is manifested by pain and limitation of motion of the cervical spine, without ankylosis or incapacitating episodes of intervertebral disc syndrome. 6. Prior to August 2, 2012, service connection was in effect for an adjustment disorder with depressed mood, rated as 30 percent disabling; status post laminectomy of the cervical spine, rated 40 percent disabling; and residuals of a bilateral herniorrhaphy, rated noncompensable. 7. The Veteran has reported having at least two years of college education and work experience in supply with the federal government. 8. Prior to August 2, 2012, the Veteran’s service-connected disabilities, standing alone, were not shown to be of such severity as to effectively preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for status post right below knee amputation (BKA) due to a service-connected disease or injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The record subsequent to the October 2000 decision of the RO, which denied service connection for low back pain, is new and material; thus, the claim for service connection for degenerative disc disease of the lumbosacral spine is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for an increased rating in excess of 40 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 5. The criteria for a TDIU prior to August 2, 2012 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to January 1977, from April 1977 to April 1980, and from August 1979 to July 2000. This case was previously before the Board in September 2016 and October 2018. In September 2016, the Board granted entitlement to TDIU from August 2, 2012. The issues regarding the ratings of the Veteran’s service-connected psychiatric disorder and cervical spine disability, as well as entitlement to TDIU prior to August 2, 2012, were remanded for further development of the evidence. In October 2018, the Board adjudicated the Veteran’s claim for increased ratings for his psychiatric disorder. As such, any matters related to the evaluations of his psychiatric disorder are no longer before the Board. The October 2018 decision also remanded again the issues related to the rating of the Veteran’s cervical spine disability for further development of the evidence, and entitlement to TDIU prior to August 2, 2012, so that it could be held in abeyance pending the completion of the development related to the cervical spine disability. In October 2014, the RO denied service connection for a right BKA and reopened the claim of service connection for a low back disorder, but denied the underlying service connection claim. The Veteran appealed these denials and the issues have been included in the current appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). “When aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen v. Brown, 7 Vet. App. 439 (1995). 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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 veteran 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). 1. Service connection for status post right BKA The Veteran contends that service connection should be established for a right BKA. Specifically, he asserts that the right leg disorder that necessitated the BKA is related to his service-connected cervical spine disability because his right leg started to hurt after his back surgery in January 2000. See November 2014 notice of disagreement. As noted, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. The Board concludes that, while the Veteran had a BKA in 2014, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, including proximately due to or aggravated by a service-connected disease or injury. The record shows the Veteran underwent a right BKA in January 2014 for complex regional pain syndrome of the right foot. The operative report, and earlier treatment records, show that he developed an ischemic right lower extremity several years earlier and had previously undergone two revascularizations with below the knee bypass. These surgeries were successful, but the Veteran then developed reperfusion neuropathy that degenerated into complex regional pain syndrome. The Veteran was treated by multiple pain specialists without resolution. After extensive discussions, it was determined that an amputation was the best option and the Veteran underwent this surgery. In conjunction with his claim for service connection, the Veteran was afforded a VA examination in July 2014. The VA examiner opined that the Veteran’s right BKA, which was secondary to ischemic right lower extremity with complex regional pain syndrome, was not at least as likely as not related to a service-connected disease or injury. The examiner explained as rationale for his opinion that the Veteran had a history of ischemic right lower extremity disease, had undergone an urgent revascularization with below knee bypass, and developed reperfusion neuropathy that degenerated into complex regional pain syndrome. Thus, the BKA was related to the ischemia of the right lower extremity that developed into complex regional pain syndrome in the right foot, and was unrelated to and not aggravated by his service-connected status post laminectomy of the cervical spine, with fusion from C4 to C6. This is the only relevant medical opinion in the record that pertains to the etiology of the Veteran’s right BKA. The Board acknowledges that the Veteran believes his right BKA is proximately due to or the result of a service-connected disability. The Veteran in this case, however, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran who has not been shown by the record to have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinion, which is based on a review of the record, contains an adequate explanation for the rationale of that opinion, and is uncontroverted by any other competent evidence in the record. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a right BKA, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. New and material evidence to reopen the claim of service connection for degenerative disc disease of the lumbar spine A claim that has been denied in an unappealed rating decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an October 2000 decision, the RO initially denied service connection for low back pain. The basis of the denial was that there was no current demonstration of low back pain. The Veteran did not appeal that denial or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). A March 2014 application for TDIU was also taken as an application to reopen the previously denied claim of service connection for a low back disorder. The Veteran now asserts that he has a low back disability as secondary to his service-connected cervical spine disorder. This presents a new theory of entitlement of whether the Veteran’s thoracolumbar spine disorder may be proximately due to or aggravated by his service-connected cervical spine disorder. As such, the Veteran’s claim is reopened. Spencer v. Brown, 4 Vet. App. 283 (1993). To this extent, the appeal is allowed. 3. Service connection for degenerative disc disease of the lumbar spine The Veteran contends that that his lumbar degenerative disc disease is related to his service-connected cervical spine disability. Specifically, he asserts that his lower back started to hurt after his back surgery in January 2000. See November 2014 notice of disagreement. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current lumbosacral spine disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current disability, degenerative disc disease of the lumbar spine, the preponderance of the evidence is against finding that the Veteran’s lumbar spine disorder is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In July 2014, the Veteran was afforded a VA examination in which the VA examiner opined that the Veteran’s degenerative disc disease of the lumbar spine was less likely than not proximately due to or the result of his service-connected condition. The examiner explained that based on his examination of the Veteran and review of the record, the claimed condition was not “corroborated as being secondary to or aggravated by his service-connected status post laminectomy, cervical spine.” Instead, the examiner explained it was more likely a natural part of the aging process. The Veteran believes his lumbosacral spine disorder is related to his service-connected cervical spine disability. He is not, however, competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and anatomical relationships. Therefore, it is outside the Veteran’s competence as the record does not show that he has the skills or medical training to make such a determination. Jandreau 492 F.3d at 1377; Kahana 24. Vet. App. at 428. Consequently, the Board gives more probative weight to the VA medical opinion, which is based on a physical examination of the Veteran and review of the record, contains an adequate explanation for the rationale of that opinion, and is the only competent opinion of record that addresses the question of whether the Veteran’s degenerative disc disease of the lumbar spine is secondary to his service-connected cervical spine disability. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for degenerative disc disease of the lumbar spine, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. An increased rating in excess of 40 percent for degenerative disc disease of the cervical spine Service connection for degenerative disc disease of the cervical spine was granted by the RO in an October 2000 decision. A 10 percent rating was initially assigned. The rating was increased to 40 percent by rating decision dated in July 2002. The Veteran claimed an increased rating in August 2010. The Veteran’s cervical spine disability, status post laminectomy with fusion from C4 to C6, is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A VA examination was conducted in October 2010. At that time, the Veteran described having flare-ups that occurred weekly and were of moderate severity. They were precipitated by raising the arms over the head, lifting more than 40 pounds and driving over two hours. He took over-the-counter Motrin. He also described symptoms of fatigue, decreased motion, stiffness, weakness, pain, and spasm. He rated the pain as 5/10. It radiated into both upper extremities, with numbness and tingling. Examination showed no abnormal spinal curvature and no ankylosis of the cervical spine. There was no muscle spasm or atrophy, but guarding and pain with motion were noted. Active range of motion was flexion to 45 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 60 degrees bilaterally. There was objective evidence of pain following repetitive motion, but no additional limitation of motion. Deep tendon reflexes were normal. Sensory examination was normal on both sides. Motor examination showed strength to be 5`1/5 throughout. The diagnosis was post anterior cervical fusion. The examiner noted that the effects on the Veteran’s occupation included decreased mobility, difficulty reaching and decreased strength in the upper extremities, with pain. A VA examination was conducted in August 2012. At that time, the diagnosis was status post laminectomy of the cervical spine with fusion. The Veteran complained of constant pain in the neck that woke him. He reported flare-ups that occurred doing the day that were not caused by any activities. Range of motion included forward flexion to 45 degrees or greater, without evidence of pain; extension to 30 degrees, with pain noted at that point; right and left lateral flexion to 30 degrees with pain at 30 degrees; and rotation to 60 degrees bilaterally, with pain at 60 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. Functional loss was described as less movement than normal, weakened movement, excess fatigability, incoordination and pain on movement. There was no localized tenderness, guarding or muscle spasm. Muscle strength testing was normal throughout, without evidence of atrophy. Reflexes were normal. Sensory examination was normal. There was no radiculopathy. The Veteran did have IVDS, but he did not have any incapacitating episodes over the past 12 months. The examiner opined that the Veteran’s cervical spine disorder did not impact his ability to work. A VA examination was conducted in October 2016. At that time, the diagnoses were degenerative arthritis of the spine, IVDS and spinal fusion. The Veteran reported no flare-ups, but did report functional loss as constant pain and an inability to left more than 20 pounds. Range of motion was forward flexion to 35 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 35 degrees and rotation to 45 degrees bilaterally. Pain was noted on all planes of motion. There was no evidence of pain on weight bearing. Localized tenderness was observed. The Veteran was able to perform repetitive use testing. The Veteran was not examined after repeated use over time, but the examination noted to be neither medically consistent or inconsistent with his statements describing functional loss with repetitive use over time. There was no muscle spasm or guarding. Muscle strength testing was 5/5, without atrophy. Reflexes were normal. Sensation was normal with the exception of decreases in the right hand and fingers. There was no radiculopathy or ankylosis. He did have IVDS, without any incapacitating episodes over the past 12 months. A VA examination was conducted in February 2019. The diagnosis was status post cervical fusion/laminectomy with residual pain. The Veteran described flare-ups of neck pain that were described as pain and stiffness first thing in the morning. The range of motion was forward flexion to 40 degrees, extension to 35 degrees, lateral flexion to 30 degrees bilaterally, right lateral rotation to 70 degrees and left lateral rotation to 65 degrees. The range of motion was not found to contribute to a functional loss. Pain was noted in all planes of range of motion. There was evidence of pain on weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. The Veteran could perform repetitive use testing without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time or during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm of the cervical spine. Strength testing was 5/5, without muscle atrophy. Reflexes were normal. Sensory examination was normal. The Veteran did not have radicular pain or other signs or symptoms of radiculopathy. There was no ankylosis of the spine or other neurologic abnormalities. The Veteran did not have IVDS of the cervical spine. After reviewing the foregoing evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s cervical spine disability based on incapacitating episodes. While the Veteran has been noted to have IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. In fact, none of the VA examinations during the appeal period have shown any incapacitating episodes over any 12-month period. The Veteran’s treatment records also do not show that he has been prescribed bed rest by a physician. Consideration has been given as to whether a higher rating may be warranted under the General Rating Criteria; however, the preponderance of the evidence is also against a rating in excess of 40 percent for the Veteran’s cervical spine disorder under that criteria. In particular, the record does not demonstrate that the Veteran has reported symptoms of significant functional loss and the degree of additional limitation reflected by the record does not demonstrate symptoms more nearly approximating unfavorable ankylosis of the entire spine. In fact, ankylosis of the spine has not been demonstrated throughout the appeal period. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his service-connected cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to TDIU prior to August 2, 2012 The Veteran has claimed TDIU, which was granted as of August 2, 2012, by a September 2016 Board decision. As previously noted, the matter of entitlement to TDIU prior to that date was remanded along with additional issues that were to be adjudicated. The issue has now been returned to the Board for adjudication. Prior to August 2, 2012, service connection was in effect for an adjustment disorder with depressed mood, rated as 30 percent disabling; status post laminectomy of the cervical spine, rated 40 percent disabling; and residuals of a bilateral herniorrhaphy, rated noncompensable. The Veteran’s combined evaluation prior to August 2012 was 60 percent. In a January 2012 application for TDIU, the Veteran reported having at least two years of college education and work experience as a civil service in supply with the Army National Guard. He indicated that he last worked full time in March 2009. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (included but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. In a January 2011 disability determination by the Social Security Administration (SSA), it was found that the Veteran was disabled for SSA purposes from March 27, 2009. The primary diagnosis causing disability was disorders of the back (discogenic and degenerative). The secondary diagnosis was affective and mood disorders. Review of the records utilized to adjudicate that claim show that in July 2009, the Veteran was noted to have lumbar and sacral radiculopathy. In July 2010, the Veteran reported that he had stopped work in March 2009 because his work contract “was up.” Additional medical records on which the SSA determination was made include a psychiatric assessment with an opinion that the Veteran’s psychiatric symptoms of depression were mostly credible, but not “substantially limiting of function.” A vocational evaluation in January 2011 indicated that the Veteran had limitations from physical disabilities, but mental impairment did not cause limitations. The examination reports of record prior to August 2, 2012, show that in October 2010, the Veteran’s cervical spine disorder caused decreased mobility, difficulty reaching and decreased strength in the upper extremities, with pain. This was not found to significantly interfere with the Veteran’s ability to work, although it was noted that he would have to be assigned different duties and had increased absenteeism. The Veteran reported that he had been unemployed for 1 to 2 years, but was not retired, and explained that he had previously held a civil service contract job that ended when the contract ended. On psychiatric examination in October 2010, it was reported that the Veteran had two years of college education. He was noted to be separated and to have three adult children who were all living independently. He described himself as being a loner. He had no history of suicide attempts, no history of violence or assaultiveness. It was noted that he was able to adequately function, but with anxiety challenges. Examination showed that he was clean and casually dressed. His speech was unremarkable and spontaneous. He was cooperative, friendly, relaxed, and attentive. His affect was normal and mood was good. His attention was intact, and he was oriented to person, time, and place. His thought process and content were unremarkable; there were no delusions. His judgment and insight were not remarkable, and he had no hallucinations or inappropriate behavior. The Veteran described sleep difficulties and his proverb interpretation was not appropriate, but there were no obsessive or ritualistic behavior. There were also no panic attacks, homicidal, or suicidal thoughts. He was able to maintain minimum personal hygiene and had no problems with activities of daily living. His memory was normal. The examiner opined that there was no reduced reliability or productivity as a result of the mental disorder and that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to the mental disorder. The Veteran reported that his usual occupation was as a civil service contractor and that he had retired in 2000 due to eligibility by age or duration of work. On examination in August 2012, the examiner stated that the Veteran’s cervical spine disorder did not impact his ability to work. In a May 2016 vocational employability assessment, a private vocational consultant opined that the Veteran’s worsening physical and psychological symptoms from his service-connected disabilities, in partnership with his vocational background, rendered him unable to secure and follow substantially gainful employment, to include sedentary employment, since he was forced to stop working as a supply clerk in March 2009. Review of the documentation utilized by the consultant in forming this opinion shows that records prior to August 2012 showed that the Veteran suffered from mood swings, had difficulty sustaining attention and had difficulty following instructions, and could not lift his arms over his head due to pain. This did not, however, account for the 2010 VA psychiatric evaluation showing only sleep difficulties and the 2010 cervical spine examination showing muscle strength in the upper extremities to be normal, without impairment of sensation or reflexes. It also does not account for the Veteran’s reports during the October 2010 VA examinations that he retired/stopped working because his contract ended and/or because of his age and duration of work. The remaining of the medical records upon which the consultant relies is dated after August 2012. In January 2018, the RO requested that the VA Director of Compensation and Pension (Director) render an opinion regarding whether TDIU could be assigned on an extraschedular basis. In February 2018, the Director responded that the available evidence did not reveal any hospitalizations, surgical procedures, or intensive treatment for any service-connected disabilities prior to August 2, 2012. While the Veteran used pain medication for management, the medical evidence did not reveal any physician directed periods of bedrest for any period of time. The Director concluded that none of the available objective evidence supported the Veteran’s contention that his service-connected disabilities individually or collectively prevented all types of gainful employment prior to August 2, 2012. As such, TDIU on an extraschedular basis prior to August 2, 2012, was not established. While the Veteran’s representative correctly points out that the Board is not bound by the Director’s opinion regarding TDIU, it is not true that such an opinion is not to be afforded any probative weight. The Board must consider it along with all of the evidence of record. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the records do not demonstrate that the Veteran’s cervical spine disorder and psychiatric disability significantly interfered with his ability to maintain employment prior to August 2, 2012. The Veteran has not contended, nor does the evidence show, that service-connected herniorrhaphy residuals caused significant impairment. The Veteran did not meet the schedule criteria for TDIU consideration such that an extraschedular award would be necessary to assign TDIU. While the vocational consultant’s May 2016 opinion is noted, the Board finds it was not based on the entire evidence of record as it did not consider either of the October 2010 VA examination reports, which are considered probative in this case. The record does not identify factors taking this case outside the norm. As such, there is no basis for TDIU prior to August 2, 2012. While it is also acknowledged that SSA found the Veteran to be unemployable under regulations applicable to that agency, the report shows that lumbar and sacral disc disease were included in that assessment. This is disability for which service connection is not in effect. Moreover, medical records utilized in making that assessment minimized the impact that the Veteran’s service-connected psychiatric disorder made to the assessment that the Veteran was not employable. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for TDIU prior to August 2, 2012, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.