Citation Nr: 21002477 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-06 884 DATE: January 13, 2021 ORDER Entitlement to a disability rating higher than 20 percent prior to April 20, 2011, and higher than 40 percent thereafter, for herniated nucleus pulposus of L4-L5 with spondylosis, status-post lumbar fusion (hereinafter, “lumbar spine disability”) is denied. Entitlement to a disability rating higher than 20 percent for cervical spine fusion of C5-C7 (hereinafter “cervical spine disability”) is denied. REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 31, 2011, is remanded. FINDINGS OF FACT 1. Prior to April 20, 2011, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, and with no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 2. From April 20, 2011, the Veteran’s lumbar spine disability was not productive of unfavorable ankylosis of the entire thoracolumbar spine, and with no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 3. The Veteran’s cervical spine disability was productive of forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, and with no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation higher than 20 percent, prior to April 20, 2011, and higher than 40 percent thereafter, for lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5242. 2. The criteria for entitlement to an increased evaluation higher than 20 percent for cervical spine disability have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1986 to June 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Increased Rating Factual Background In September 2009, the Veteran underwent an examination. He reported having a herniated nucleus pulposus. He reported being able to walk 500 yards in 30 minutes. He reported stiffness, fatigue, spasms, decreased motion, paresthesias, and numbness. He reported weakness of the spine, leg and foot. He had no bowel problems, bladder problems, or erectile dysfunction. He reported back pain that occurs 8 times per week and lasts for 2 hours. He reported severe pain, that could be exacerbated by physical activity, sleeping, walking, and sitting. During a flare-up he reported functional impairment caused by pain and limitation of motion of the joint that results in him being unable to bend repeatedly. The examiner noted that in 1995, the Veteran underwent a L4-5 fusion. His condition did not result in incapacitation. The examination revealed no evidence of radiating pain on movement. There were no muscle spasms, tenderness or guarding. There was no evidence of weakness. Range of motion testing revealed flexion to 45 degrees, extension to 25 degrees, right and left lateral flexion to 20 degrees, and left and right rotation to 30 degrees, with pain. Following repetitive range of motion testing, there was not an additional limitation. The joint function of the spine was additionally limited by pain after repetitive use. He had functional impact due to pain that was described as decreased physical activity and difficulty sleeping. There was a scar on the posterior side of the trunk that is linear, and measures 5cm by 0.5cm. The scar was not painful on examination, and was noted as being superficial with no underlying tissue damage. The scar had no effect on the Veteran’s motion, and was not found to be disfiguring. His posture was normal, and he walked with a limp favoring the left leg. He used a cane to assist in stability. On examination of his cervical spine, there was no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone and atrophy of limbs. He reported being diagnosed with cervical hypertrophic osteophytes with narrowing disc space. He reported cramping, and pain on his back and neck that occurs constantly. He reported the pain can be exacerbated by physical activity and sleep. During a flare-up he experiences limitation of motion, described as limited side movements. He described residuals of chest pain, arm pain, and occasionally choking on food. He stated his condition had not resulted in any incapacitation. There was no ankylosis of the cervical spine. Range of motion testing revealed flexion to 25 degrees, extension to 35, right and left lateral flexion to 20 degrees, and right and left rotation to 30 degrees, all with pain. There was no change following repetitive range of motion testing. He is status-post cervical spine disc fusion of C5-7 with residual scar and residual stabilizing hardware. He had cervical spine spondylosis with IVDS. He had lumbar spine spondylosis with IVDS. The examiner described the effect of the Veteran’s back condition in his occupation as moderate. SSA records indicate he was found unemployable as a result of his lumbar spine and degenerative joint disease of his knees starting in April 2009. These records show the Veteran reported last working in March 2009 in IT. In an April 2010 statement from Dr. G., he reported the Veteran suffered periods of incapacitation requiring bed rest. He stated his neck and back conditions have caused him to be incapacitated for more than 45 days each, which included bed rest. In a November 2010 statement, the Veteran reported being incapacitated as a result of IVDS, for over 6 weeks in the prior 12 months. In April 2011, the Veteran underwent an examination. On examination of the cervical spine, there was no evidence of radiating pain on movement, spasms, tenderness, guarding, weakness, loss of tone, or atrophy of the limbs. There was no ankylosis of the cervical spine. Range of motion testing revealed flexion to 30 degrees, extension to 25, right lateral flexion to 35, left lateral flexion to 30, right rotation to 50, and left rotation to 45, all with pain. There was no change in range of motion following repetitive motions. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. On examination of the lumbar spine, there was no evidence of radiating pain on movement. There were no muscle spasms, tenderness, or guarding. There was no evidence of weakness, and muscle tone was normal. There was no ankylosis of the spine. Range of motion testing revealed flexion to 30 degrees, extension to 15, right lateral flexion to 15, left lateral flexion to 20, and right and left rotation to 15, with pain. There was no change following repetitive testing. The joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Inspection of the spine revealed normal head position with symmetry in appearance. He has lumbar and cervical spine IVDS. He reported IVDS causes bladder dysfunction with no pad needed and erectile dysfunction. There were no signs of bowel dysfunction. The effect of the Veteran’s conditions on his usual occupation was moderate, and the effect on his daily activity was also moderate. In a December 2011 statement from Dr. G. of the Alamo Pain Center, the clinician noted the Veteran was unable to sit or lift without being in pain, and range of motion of his lumbar spine was restricted. The clinician noted the Veteran has had periods of incapacitation requiring bed rest. In a January 2012 statement, he reported being unemployable as a result of his back and neck injuries. In February 2013 the RO granted entitlement to TDIU. In a completed VA Form 21-4140, the Veteran reported being self-employed and was working one hour per week, since April 2014. He supplied further correspondence explaining that he had a goal of working four hours per week. He reported having just finished a ten-day episode where he would sleep for more than 15 hours per day. In a February 2018 statement from D. Y., he reported being hired by the Veteran to do yard work and other projects because the Veteran was unable to do the work. In a March 2018 statement from the Veteran’s mother, she reported the Veteran returned from service a broken man, and having back problems ever since. She reported observing him having trouble sleeping, maintaining his home, stooping, bending, lifting and moving items, and he appeared to be often in severe pain and discomfort. In a March 2018 statement, he reported beginning in February 2009 his back and systemic arthritis relapsed, and by April 2009 he was unable to work. Since then, he has been unable to seek employment. He further requested extra-schedular consideration. In September 2020, the Veteran underwent another examination. He reported pain makes it difficult to do any physical activity. He is unable to stand or walk for long due to leg weakness and lack of coordination. He used a cane for support. The pain makes it difficult to sleep at night. When the weather changes, he endorsed flare-ups of pain. He reported being unable to bend or lift, and any repetitive bending or lifting is painful. He reported experiencing incontinence of bladder and bowel. Range of motion testing revealed flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 10 degrees, with pain. There was tenderness or pain on palpation of the upper to lower back. There was evidence of pain with weight bearing, and pain when the back was used in non-weight bearing. Passive range of motion was not performed. There was no additional loss of function or loss of range of motion after three repetitions. The examiner opined that the examination is medically consistent with his statements describing functional loss with repetitive use over time. The examiner found that pain caused functional loss, with no reduction in range of motion functionality. The examiner found that the examination was neither consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up, with no noted limit in functional ability during a flare up. He had no guarding or muscle spasms. The examiner stated the Veteran has no bowel or bladder dysfunction related to his thoracolumbar spine. The examiner noted the Veteran does not have IVDS, and does not require physician prescribed bedrest. He has a lower back scar that measures 6.5 cm by 0.5cm, and it is not painful or unstable. On examination of his cervical spine range of motion testing revealed flexion to 35 degrees, extension to 25 degrees, right lateral flexion to 35 degrees, left lateral flexion to 15 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 30 degrees with pain. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. Following three repetitions, there was no additional loss of function or range of motion. The Veteran reported that flare-ups occur when it is cold, and he feels “burning” inside the bone. He reported difficulty turning his head. The examiner found that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain caused functional loss, with no reduction in range of motion functionality. The examiner found that the examination was neither consistent nor inconsistent with his statements describing functional loss during a flare up, with no noted limit in functional ability with a flare-up. In terms of range of motion during a flare-up, the examiner indicated there would be no change. The Veteran had no guarding, muscle spasms, or ankylosis. He has IVDS of the cervical spine, and the examiner indicated the Veteran has had no signs or symptoms due to IVDS that require bed rest prescribed by a physician. There was objective evidence of pain when the neck was used in non-weight bearing. Passive range of motion of the neck was the same as active range of motion, with pain. He has a scar on his neck that is not painful, and measures 4 by 0.4 cm. In a November 2020 statement, the Veteran reported sleeping 16 hours the night prior, and waking with stabbing pain in his penis and anus, and waking from a jolt to his legs, back, and neck. Legal Criteria Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is 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 where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations 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. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. CAVC has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.” Id. (quoting 38 C.F.R. § 4.40). Additionally, CAVC, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 1. Entitlement to a disability rating higher than 20 percent prior to April 20, 2011, and higher than 40 percent thereafter, for lumbar spine disability. The Veteran is in receipt of a 20 percent rating prior to April 20, 2011, and a 40 percent rating thereafter, under diagnostic code 5242. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent prior to April 20, 2011. To meet the criteria for a 40 percent rating, the range of flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under diagnostic code 5242, or under Diagnostic Code 5243 there would have to be IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this lumbar spine disability meets the criteria for a higher rating. Prior to April 20, 2011, the record shows that the Veteran’s flexion on exam was found to be, at worst, to 45 degrees, with no evidence of further limitation following repetitive motion or during a flareup. The functional impact was described as decreased physical activity and difficulty sleeping. Although there were complaints of pain, there was no specific weakness, fatigability, or incoordination noted. Furthermore, there was no evidence of muscle spasms or guarding severe enough to result in abnormal spinal contour or abnormal gait. Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. As for functional loss during a flare-up, the Veteran described loss as an inability to repeatedly bend. This functional loss during a flare-up does not more nearly approximate limitation of flexion to 30 degrees or less. Higher evaluations are also available for intervertebral disc syndrome. The Veteran has been diagnosed with IVDS; however, there is no probative evidence of record of the Veteran seeking treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. Although there is a note that from Dr. G. in 2010 stating he needed bedrest, the record is completely void for any reported prescriptions of bedrest by a clinician, or treatment for IVDS episodes. Further the examiner in 2009 indicated the Veteran’s condition had not resulted in periods of incapacitation as contemplated by the rating criteria. The Board finds that the concurrent treatment records and VA examiner’s opinion more probative than the statement made by Dr. G. of any incapacitating episodes. Dr. G. provided a blanket statement without pointing to supporting medical evidence to any prescribed bedrest made by a clinician. Dr. G.’s findings are less probative than the 2009 VA examiner’s opinion finding no history of incapacitating episodes due to the lumbar spine disability. Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent for his lumbar spine disability prior to April 20, 2011. The Board finds that from April 20, 2011, the criteria for a rating higher than 40 percent have not been met. During his April 2011 examination, the Veteran had painful motion, flexion to 30 degrees during a flare-up, and no evidence of ankylosis. He had no muscle spasms, guarding, or tenderness. At the September 2020 examination, his motion was to 15 degrees with pain, with no change following three repetitions or during a flare-up. These findings are consistent with a 40 percent rating. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the motion found by the VA examiners, and VA medical providers, the Board finds that that the Veteran does not have ankylosis of the thoracolumbar spine. As such, an evaluation in excess of 40 percent is not warranted. Again, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca, supra. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. To be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine, of which there is no evidence. The next higher evaluation is not warranted. Higher evaluations are also available for IVDS, and though he has been diagnosed with IVDS at various times during the period on appeal, there are no indications of doctor prescribed bed rest. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Separate ratings have already been assigned for bilateral lower extremity radiculopathy, which as of this date, he has not appealed. Although the Veteran has on occasion reported bowel and bladder incontinence, and there is one mention of urinary incontinence without the need for a pad in 2011, there is no further evidence of any incontinence in the Veteran’s treatment records. The most recent examiner found that he did not suffer from bowel or bladder incontinence due to his lumbar spine disability. As such, the record does not show any other neurological abnormalities associated with the Veteran’s lumbar spine. Accordingly, a separate rating for a neurological disability is not warranted. With respect to his lumbar spine scar, the Veteran is in receipt of a noncompensable evaluation for his lumbar scar. Throughout the rating period, the Veteran’s scar has been described as linear, not painful, and not unstable. 38 C.F.R. § 4.118. A compensable evaluation is warranted if the scar is painful or unstable. There is no indication the scar has been painful or unstable, hence, further discussion is not warranted. The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. Accordingly, entitlement to an evaluation higher than 20 percent prior to April 20, 2011, and higher than 40 percent, thereafter, for the lumbar spine disability is not warranted. 2. Entitlement to a disability rating higher than 20 percent for cervical spine disability. The Veteran’s cervical spine is evaluated as 20 percent disabling under DC 5243. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent at any time during the pendency of this claim. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this cervical spine disability meets the criteria for a higher rating. Even considering the Veteran’s subjective complaints of pain, the evidence of record does not show any additional limitation of motion or functional impairment that would support an evaluation higher than 20 percent. Throughout the period on appeal his flexion has been, at worst, to 25 degrees. To meet the criteria for a 30 percent rating, the range of flexion would have to be limited to 15 degrees or less or favorable ankylosis of the entire cervical spine under diagnostic code 5237. At the 2009 examination, flexion was, at worst, to 25 degrees; however, in 2020 his flexion had improved with flexion reaching 35 degrees, with no additional limitation in range of motion following three repetitions, and he denied flare-ups. In 2011, there was no change following repetitive motion testing, and he reported flare-ups result in limitation of motion described as limited side movements. In 2020 the examiner indicated there is no additional loss of function or range of motion after three repetitions. As for following repetitive use over time, the examination is medically consistent with his statements describing functional loss with repetitive use over time. Regarding Correia criteria, at the 2020 examination there was no noted objective evidence of pain when the spine is used in non-weight bearing, and passive range of motion was the same as active range of motion. There was objective evidence of pain that was the same as that in active range of motion. The Court has established that flare-ups must be considered. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. On examination in 2009, he reported flare-ups of the cervical spine as resulting in limited side movements. At the 2020 examination, the examiner indicated there was no limit in functional ability with a flare up, and there would be no change in range of motion during a flare. Accordingly, there is no basis on which to warrant a higher evaluation based upon flare-ups. There is no probative evidence that the Veteran has had forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. The Veteran’s reports of exacerbation or flare-ups did not result in limitation of motion or function beyond that contemplated by the already provided evaluation, and are not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Higher evaluations are also available for intervertebral disc syndrome. Although he has been diagnosed with IVDS, there is no evidence showing treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. Again, as is stated above, there are reports throughout the period on appeal that he has been diagnosed with IVDS, but there are no consistent findings of doctor prescribed bedrest, with the most recent examination findings being that he does not have IVDS or request bedrest. As such throughout the entire period on appeal, a higher evaluation under DC 5243 is not warranted. At no time during the pendency of the appeal, have there been findings of ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the limitation of motion noted by the VA examiners (including negative findings of ankylosis), and VA medical providers, the Board finds that at no time during the course of the appeal has the Veteran had ankylosis of the spine. The assigned 20 percent rating adequately contemplates the Veteran’s level of impairment—including consideration of functional impairment during flare-ups or following repetitive motion. As such, a higher evaluation is not warranted due to functional loss. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Separate ratings have already been assigned for bilateral upper extremity radiculopathy, which as of this date, he has not appealed. The record does not show any other neurological abnormalities associated with the Veteran’s cervical spine. Accordingly, a separate rating for a neurological disability is not warranted. With respect to his cervical spine scar, the Veteran is in receipt of a noncompensable evaluation for his cervical spine scar. Throughout the rating period, the Veteran’s scar has been described as linear, not painful, and not unstable. 38 C.F.R. § 4.118. A compensable evaluation is warranted if the scar is painful or unstable. There is no indication the scar has been painful or unstable, hence further discussion is not warranted. Accordingly, entitlement to an evaluation higher than 20 percent for the cervical spine disability is not warranted. REASONS FOR REMAND 3. Entitlement to a TDIU, prior to January 31, 2011, is remanded. TDIU is 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Prior to January 31, 2011, service connection is in effect for lumbar spine disability with a 20 percent evaluation, cervical spine disability with a 20 percent evaluation, left hip disability with a 10 percent evaluation, left upper extremity radiculopathy with a 10 percent evaluation, left lower extremity radiculopathy with a 10 percent evaluation, rhinitis with a noncompensable evaluation, residuals of basal cell carcinoma with a noncompensable evaluation, and cervical spine scar and lumbar spine scar each with a noncompensable evaluation. His service-connected disabilities meet a combined rating of 50 percent disabling from June 30, 2009. As such, the Veteran does not meet the percentage requirements for TDIU prior to January 31, 2011. 38 C.F.R. § 4.16(a). A TDIU may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section § 4.16(a). This is one of those circumstances. In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 41.6(b) and may only refer the claim to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Although the Veteran does not meet the schedular requirements for a TDIU prior to January 31, 2011, there is ample evidence in the record that his disabilities have impacted his ability to maintain substantially gainful employment. In this case, the Veteran has not worked since 2009, and has been in receipt of SSA disability benefits on account of his back and knees, as of April 2009. His TDIU application indicates he last worked in March 2009. The September 2020 examiner indicated that as a result of his cervical spine and lumbar spine disabilities, the Veteran would have severe difficulties functioning normally in an occupational setting due to decreased ability in performing activities that require bending, lifting, standing, walking or climbing, prior to January 31, 2011. As such, this issue is referred to the Director Compensation Service, for extraschedular consideration of TDIU. Accordingly, the case is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to January 31, 2011 to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). 2. If the claim for extraschedular TDIU is not granted, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, Counsel 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.