Citation Nr: 21064086 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 11-02 552 DATE: October 19, 2021 ORDER A disability rating greater than 20 percent for lumbar spine disability beginning January 27, 2011 is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis prior to April 13, 2018 is remanded. FINDING OF FACT Throughout the appeal period beginning January 27, 2011, the Veteran's lumbar spine disability has been manifested by, at worst, forward flexion to 45 degrees. The lumbar spine disability has not been manifested by ankylosis, severe intervertebral disc syndrome (IVDS) with recurring attacks with intermittent relief, or incapacitating episodes, even with consideration of the Veteran's pain and functional loss. CONCLUSION OF LAW Beginning January 27, 2011, the criteria for a disability rating greater than 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1973 to June 1976 and from October 1976 to October 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in part, continued a 10 percent disability rating for the Veteran's lumbar spine disability. Subsequently, in May 2013, the RO increased the Veteran's disability rating for the lumbar spine from 10 to 20 percent disabling effective January 27, 2011. This case was previously before the Board in February 2016 at which time the Board remanded the lumbar spine issue for further development. In March 2017, the Board denied increased ratings for the Veteran's lumbar spine disability, both prior to and beginning January 27, 2011. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2017, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's March 2017 decision and remanding the matter for readjudication. In March 2017 the Board also took jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to TDIU is raised during the administrative appeal of the increased rating or initial rating assigned for the underlying disability or disabilities, it is a part of the claim for benefits for that disability or disabilities) and remanded this issue to the agency of original jurisdiction (AOJ) for additional development. Thereafter, in August 2020, while the case was in remand status, the AOJ granted a TDIU, effective April 13, 2018. However, as the Veteran's claim for a higher rating for the lumbar spine has pending since April 2008, the issue of entitlement to a TDIU prior to April 13, 2018 is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In November 2018, the Board considered the issue of entitlement to an increased rating for lumbar spine disability prior January 27, 2011, granting a 20 percent disability rating, but no higher, for lumbar spine disability effective April 21, 2008. The Board also remanded the issue of entitlement to an increased rating for lumbar spine disability beginning January 27, 2011 to the AOJ for additional development. Most recently, in March 2021, the Boarded the lumbar spine and TDIU issues still on appeal for additional development. Notably, in October 2015, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) that is no longer available to participate in the Veteran's appeal. 38 U.S.C. § 7107; 38 C.F.R. § 20.106. A transcript of that hearing has been associated with the record. In November 2020, the Veteran was notified that the VLJ was no longer available to participate in his appeal and that he had a right to a new hearing. In December 2020, correspondence, the Veteran elected not to appear at another Board hearing and for his case to be considered based on the evidence of record. 1. A disability rating greater than 20 percent for lumbar spine disability beginning January 27, 2011 is denied. By way of history, the Veteran injured his lumbar spine during his military service in approximately 1995 when he fell on ice. He submitted an initial claim for service connection for a lumbar spine disability in March 1997 and, by rating decision dated in March 1998, the RO granted service connection for degenerative disc disease (DDD) of the lumbar spine, assigning a 10 percent disability rating effective November 1, 1996. The Veteran submitted the current claim for an increased rating for his lumbar spine disability in April 2008 and, by rating decision dated in January 2009, the RO continued a 10 percent disability rating for the lumbar spine. The Veteran disagreed with this decision and perfected this appeal. As above, in May 2013, the RO increased the Veteran's disability rating for the lumbar spine from 10 to 20 percent disabling effective January 27, 2011 and in November 2018, the Board considered the issue of entitlement to an increased rating for lumbar spine disability prior January 27, 2011, granting a 20 percent disability rating, but no higher, for lumbar spine disability effective April 21, 2008. In November 2018, the Board also remanded the issue of entitlement to an increased rating for lumbar spine disability beginning January 27, 2011 to the AOJ for additional development. As such, the Board will only consider the issue of entitlement to an increased rating for lumbar spine disability beginning January 27, 2011. General Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the lumbar spine are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the claim at this time. Specific Legal Criteria The Veteran's lumbar spine disability is currently rated under DC 5243 which may be evaluated under either of two general rating formulas. One applies to IVDS, and is based upon the duration of incapacitating episodes. The other general rating formula involves the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Pertinent to this appeal, Note (1) of the rating schedule indicates that the agency is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Also, from Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Alternatively, the Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; and a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). Beginning February 7, 2021, DC 5243 (pertaining to IVDS) is only used when there is disc herniation with compression and/or irritation of the adjacent nerve root. DC 5242 is used for all other disc diagnoses. Relevant Evidence Evidence relevant to the level of severity of the Veteran's lumbar spine disability during the pendency of the claim, beginning January 27, 2011, includes VA lumbar spine examinations dated in January 2013, February 2016, March 2018, July 2020, and June 2021. During the January 2013 VA examination, the examiner noted a diagnosis of degenerative arthritis of the lumbar spine. At that time, the Veteran noted a history of an in-service slip and fall resulting in his current lumbar spine disability and indicated that it had been getting progressively worse as he had gotten older, now manifesting with radicular pain shooting down the bilateral legs, left worse than right. He used a cane due to instability of the right leg. The Veteran experienced daily back pain and treated this pain with medication. Regarding flare-ups, the Veteran reported experiencing flare-ups that impact the function of his back but did not describe these in terms of loss of motion. On range of motion testing, the Veteran had flexion to 45 degrees (with pain beginning at 5 degrees), extension to 15 degrees (with pain beginning at 10 degrees), right lateral flexion to 15 degrees (with pain beginning at 10 degrees), left lateral flexion to 15 degrees (with pain beginning at 10 degrees), right lateral rotation to 15 degrees (with pain beginning at 10 degrees), and left lateral rotation to 20 degrees (with pain beginning at 10 degrees). The Veteran was able to perform repetitive-use testing with three repetitions and no additional loss of motion. There was functional loss/impairment of the spine, described as less movement than normal, pain on movement, and instability of station. There was localized tenderness or pain to palpation which was severe enough to result in abnormal gait. Muscle strength testing was normal with the exception of bilateral great toe extension which was slightly abnormal, described as "active movement against some resistance" and there was no muscle atrophy. Reflex examination was normal for the bilateral knees but slightly abnormal for the bilateral ankles, described as hypoactive. Sensory examination was normal for the bilateral upper anterior thighs and thighs/knees but decreased for the bilateral lower legs, ankles, feet, and toes. Straight leg raising testing was negative bilaterally. While there were some signs of radiculopathy, including constant and intermittent pain, there were no other signs or symptoms of radiculopathy. Other neurologic abnormalities included episodes of incontinence of bowel and bladder. The examiner noted that the Veteran did have IVDS but that there had not been any incapacitating episodes over the past 12 months due to IVDS. Regarding assistive devices, it was noted that the Veteran regularly used a cane to aid with locomotion. There was no functional impairment of an extremity such that no effective function remained, other than that which would be equally well served by an amputation with prosthesis. Other pertinent physical findings included scars, an inability to demonstrate tandem walk and walk on toes, as well as poor balance. Diagnostic imaging revealed arthritis, but there was no vertebral fracture. Electrodiagnostic testing showed sensory neuropathy of the lower extremities with no electrodiagnostic evidence of lumbar radiculopathy in both lower extremities. During the February 2016 VA spine examination, the examiner noted diagnoses of degenerative arthritis of the spine as well as IVDS. At that time, the Veteran reported experiencing significant back pain, trouble walking/standing, as well as urinary incontinence. This affects his daily activities in that he really does not have much of a daily activity. In the summer, he fixes lawn mowers and he may do one a day, if he is lucky. He was sent to therapy in 2014 for his back and balance and, according to the Veteran, this made everything worse. The Veteran denied experiencing flare-ups of the lumbar spine but did report functional loss, described as difficulty bending over. On range of motion testing, the Veteran had flexion to 65 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with three repetitions and no additional loss of motion. The Veteran was examined immediately after repetitive use over time and neither pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine and no additional factors contributing to disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensory examination were also normal and straight leg raising test was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine or any other neurologic abnormalities. The Veteran was noted to have but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the last 12 months. Regarding assistive devices, it was noted that the Veteran constantly used a brace and cane to aid in locomotion due to a right knee disability. There was no functional impairment of an extremity such that no effective function remained, other than that which would be equally well served by an amputation with prosthesis. Other pertinent physical findings included a body mass index (BMI) of 27.63, walking with his toes up due to pain, leg lengths of 100 centimeters bilaterally, seen getting dressed/undressed and moving his backs without objective evidence of pain, and an inability to perform ankle reflexes as the Veteran could not relax his muscles. Diagnostic testing revealed arthritis but was negative for thoracic vertebral fracture with loss of 50 percent or more of height. With regard to functional impact, the examiner noted that the Veteran's lumbar spine disorder impacted has ability to work. Specifically, it was noted that the Veteran should avoid heavy lifting as well as repetitive twisting/bending. The examiner concluded that the Veteran's lumbar spine disability reflected a normal progression of degenerative changes which may worsen with time but, at the time of the examination, had not progressed beyond the normal progression of the disease. The Veteran was able to work as a diesel mechanic after service and continued to repair lawn mowers. His BMI places him in the overweight category which can stress the back and worsen degenerative changes. The Veteran had no changes on MRI (magnetic resonance imaging) or EMG (electromyography) to suggest urination problems are secondary to his back condition. During the March 2018 VA spine examination, the examiner continued a diagnosis of DDD. The Veteran reported that his lumbar spine disability had gotten worse in the last 18 months and had difficulty moving his feet when his back was hurting. Specifically, he experienced an aching pain of the whole back with numb feet. His movements were restricted and he experienced more pain after a long day. He could not stand for longer than a few months, wakes up several times at night due to pain, and had difficulty driving for more than a few hours. He treated his symptoms with medication and massage. He had tried physical therapy but this did not help. Significantly, the Veteran reported experiencing flare-ups of the lumbar spine, described as "mega pain" requiring him to sit in a recliner with his feet up and resulting with difficulty in movement and/or carrying more than 5 pounds. These flare-ups occurred twice per day for several minutes to longer than a day. He also reported experiencing functional loss/impairment of the lumbar spine, described as an inability to bend forward as far as normal and/or rotate. He could not carry more than 5 pounds with a flare-up. On range of motion testing, the Veteran had flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. This loss of motion resulted in functional loss, described as difficulty with movement. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine as well as evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of motion or loss of function. The Veteran was not examined immediately after repetitive use over time and/or during a flare-up and the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time and/or during flare-ups. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time and/or during flare-ups. Specifically, there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. There was muscle spasm and guarding but this did not result in abnormal gait or abnormal spine contour. There were no additional factors contributing to disability. Muscle strength testing was normal and there was no muscle atrophy of the left quadriceps. Reflex examination was normal and sensory examination was decreased on the right side but normal on the left side. Specifically, the lateral aspect of the right leg as well as 2nd/3rd toes had decreased sensation. Straight leg raising test was negative. There was radiculopathy of both lower extremities, resulting in numbness, involving the sciatic nerve, and described as mild for each extremity. There was no ankylosis of the spine or any other neurologic abnormalities. The Veteran was noted to have IVDS but there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. Regarding assistive devices, it was noted that the Veteran regularly used a cane to aid in locomotion. There was no functional impairment of an extremity such that no effective function remained, other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings. Diagnostic testing revealed arthritis but there was no evidence of thoracic vertebral fracture with loss of 50 percent or more of height. With regard to functional impact, the examiner noted that the Veteran's lumbar spine disorder impacted has ability to work. Specifically, it was noted that the Veteran was a retired mechanic and had lost approximately one week in the last 12 months due to difficulty bending over, lifting objects off the floor, as well as carrying objects weighing over 5 pounds. Also, the Veteran would get tired after working for two hours requiring a break. It was noted that the Veteran stopped working due to back pain. With regard to Correia, the examiner noted that passive range of motion was not performed and it was not feasible to do this in a safe and reasonable manner. Non-weight bearing assessment was also inapplicable and there was no objective evidence of pain when the spine was in a non-weight bearing position at rest. Opposing joint assessment was not applicable because the spine did not have an opposing joint. During the July 2020 VA spine examination, the examiner continued a diagnosis of degenerative arthritis of the spine. At that time, the Veteran reported that he continued to experience back pain which had gotten worse after all these years. Significantly, he was unable to bend down to tie his shoes. The pain was mostly in the lower back area and stays in that area. The pain does not radiate down the legs. He uses a heating pad which does help with his symptoms. He does have numbness and tingling along the outside of the lower legs, bilaterally, along the sides down to the side of the feet. He claims that he also has some weakness of his lower extremity. He has also had falls as his right knee gives out due to pain. He uses a dolomite walker to ambulate short and long distances. He uses a cane for very small distances, particularly when he is getting from his walker to the car. He used to use a back brace but does not wear it now as he is worried about weakening his back muscles. His pain is constant, sharp in nature, and comes on when he is standing or walking. The pain gets better with sitting and use of a heating pad. He also reports incontinence of his urine for which he wore diapers, which has been going on for about 5 years, and had been evaluated by urologist for this. He denied any bowel incontinence. He has also had multiple EMG/NCV studies in the past and had been diagnosed with peripheral neuropathy. Significantly, the Veteran reported experiencing flare-ups of lumbar spine pain with any kind of walking, either short or long distances, which makes his pain worse. Standing for 5 minutes or longer also worsened his pain. Any bending forward, extending, or rotating maneuvers also made his pain worse, with resulting flare-up. The Veteran also reported experiencing functional loss/impairment of the lumbar spine, described as limited range of motion with an inability to bend/tie his shoes, walk for long distances, and/or dress himself without assistance. Range of motion testing revealed forward flexion to 55 degrees, extension to 12 degrees, right lateral flexion to 15 degrees, left lateral flexion to 22 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine (lumbar paraspinal region bilaterally of a mild to moderate severity) as well as evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of motion. The Veteran was not examined immediately after repetitive use over time, and the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. While fatigue significantly limited functional ability with repeated use over a period of time, the examiner was unable to describe this in terms of range of motion. Similarly, the Veteran was not examined during a flare-up, and the examiner noted that the examination was neither medical consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. While pain, lack of endurance, and incoordination significantly limited functional ability during flare-ups, the examiner was unable to describe this in terms of range of motion. There was muscle spasm and guarding resulting in abnormal gait or abnormal spine contour. Additional factors contributing to disability included less movement than normal, instability of station, disturbance of locomotion, and interference with sitting/standing. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was normal for the bilateral knees and slightly abnormal, described as "hypoactive" for the bilateral ankles. Sensory examination was normal for the bilateral upper anterior thighs/knees but "decreased" for the lower legs/ankles/feet/toes, bilaterally. This, according to the examiner, was the result of the Veteran's documented peripheral neuropathy. Straight leg raising testing was normal and there were no signs of radiculopathy. There was no ankylosis of the spine or any other neurologic abnormalities. It was noted that the Veteran did not have IVDS. Regarding assistive devices, the Veteran constantly used a walker and occasionally used a cane to aid in locomotion due to his lumbar spine and right knee disabilities. There was no functional impairment of an extremity such that no effective function remained, other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings. Diagnostic testing revealed arthritis but was negative for thoracic vertebral fracture with loss of 50 percent or more of height. With regard to functional impact, the examiner noted that the Veteran's lumbar spine disorder impacted has ability to work. Specifically, it was noted that a thoracolumbar spine condition can negatively impact an individual's ability to work when there is acute flare-up of the pain resulting from bending, twisting, or rotating, or lifting heavy objects from the ground. The intensity of the pain from this condition can result in impairing an individual's ability to perform active functional tasks and therefore limiting the range of motion of the spine and also result in an individual being bedridden due to worsening of the pain. Furthermore, with worsening pain, and the range of motion loss, individuals can also have balance and gait impairment, leading to inability to perform long distance for short distance ambulation, needing an assistive device for stability to prevent a fall, and thereby further limiting ability to perform work-related tasks. With regard to Correia, the examiner wrote that passive range of motion of the back was not performed as this likely would have risked exacerbating his condition and therefore also injuring his back. Furthermore, it is not feasible to perform this in a safe and effective manner without injuring the Veteran, as the Veteran already has balance and gait impairment, and right knee pain, sensory neuropathy of his lower extremity which limits his ability to tolerate passive activities. However, there was objective evidence of pain when the back was used in non-weight bearing. Significantly, it was noted that, while the Veteran does have incontinence of his urine, this has been evaluated in the past by his neurologist, and an MRI of the lumbar spine does not indicate any pathology which can cause the urinary incontinence. Furthermore, the examiner opined that it was less likely than not that the Veteran's neurological complaints are related to his thoracolumbar spine condition as such symptoms have been related to the Veteran's documented sensory peripheral neuropathy of the lower extremity. During the June 2021 VA examination, the examiner continued a diagnosis of DDD other than IVDS. Significantly, the Veteran denied regular flare-ups of the lumbar spine and/or functional loss/impairment due to the lumbar spine disability Range of motion testing (both active and passive) revealed forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was no evidence of pain, crepitus, and/or evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of motion. The Veteran was not examined immediately after repetitive use over time, but the examiner noted that neither pain, fatigability, weakness, lack of endurance, nor incoordination significantly limited functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine and no additional factors contributing to disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensory examination were also normal. Straight leg raising test was negative bilaterally. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine or any other neurologic abnormalities. The Veteran did not have IVDS. The Veteran did not use any assistive device to aid in locomotion. There was no functional impairment of an extremity such that no effective function remained, other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings. Diagnostic testing was not performed but it was indicated that there was no thoracic vertebral fracture with loss of 50 percent or more of height. With regard to functional impact, the examiner noted that the Veteran's lumbar spine disorder did not impact his ability to work. With regard to Correia, the examiner wrote that there was no evidence of pain on passive range of motion testing or non-weight bearing. With regard to Sharp, the examiner wrote that, after the examination, with history and current subjective complaint, combined with a review of the available medical records, there is no basis to substantiate additional loss of function or motion with repetitive use or during a flare-up. In a July 2021 addendum opinion, the June 2021 VA examiner provided the following clarification: 1. Current clinical history evidences no flare ups. 2. No substantiated clinical evidence of radiculopathy. 3. Veteran is diagnosed with IVDS. Also, of record are VA and private treatment records dated through February 2021. These records show treatment for the Veteran's lumbar spine but are negative for any incapacitating episodes requiring bedrest by a physician, or any range of motion findings. Significantly, a May 2016 VA peripheral nerve examiner diagnosed the Veteran with bilateral sural nerve sensory neuropathy and noted that sural nerve sensory neuropathy is not a condition known to be related to any lumbar spine condition. The May 2016 VA peripheral nerve examiner also noted that both EMG and NCS testing as well as clinical examination at that time confirmed that the Veteran does not have a lumbar radiculopathy. Analysis Upon review of the above evidence, the Board finds that a disability rating greater than 20 percent for the Veteran's lumbar spine disability is not warranted because there is no medical evidence of limitation of forward flexion to 30 degrees or less, or evidence of favorable ankylosis of the entire thoracolumbar spine - the requirements for the next higher rating of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5237. As above, the January 2013 VA examination reports show flexion to 45 degrees (with pain beginning at 55 degrees), the February 2016 VA examination report shows flexion to 65 degrees, the March 2018 VA examination report shows flexion to 70 degrees, the July 2020 VA examination report shows flexion to 55 degrees, and the June 2021 VA examination shows flexion to 85 degrees. While the January 2013 VA examination report shows complaints of pain beginning at 5 degrees, the Board notes that, when comparing this finding with the subsequent range of motion testing in February 2016, March 2018, July 2020, and June 2021, the Board finds that this finding is an anomaly and, as such, does not reflect the Veteran's typical range of motion of the lumbar spine. Also, while (with the exception of the June 2021 VA examination report) these ranges of motion were not specified on active versus passive, both the March 2018 and July 2020 VA examiners indicated that passive range of motion testing of the spine is not feasible. With regard to the potential for a higher rating for the lumbar spine based on additional loss of motion due to flare-ups of the back pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board notes that while the January 2013, March 2018, and July 2020 VA examination reports show complaints of flare-ups of the lumbar spine, none of these examiners were able to describe the Veteran's flare-ups in terms of loss of motion. Also, both the February 2016 and June 2021 VA examination reports are negative for flare-ups and the June 2021 VA examiner noted that, after examination of the Veteran (with history and current subjective complaint) combined with a review of the available medical records of evidence, there was no basis to substantiate additional loss of function or motion with repetitive use or during a flare-up. Moreover, the guidance on how to evaluate flare-ups has not been particularly clear and, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time additionally limited function in a quantifiable way, nor did they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. The Board has also considered whether any other diagnostic codes might serve as a basis for an increased rating. In this regard, DC 5003 addresses degenerative arthritis. However, in this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Therefore, it does not allow for a higher evaluation. Also, while the Veteran has been diagnosed with IVDS during the appeal period, the evidence is negative for any incapacitating episodes requiring bedrest by a physician. There are no other applicable codes available for consideration. The Board has also contemplated whether any separate evaluations are applicable here for additional disability associated with the service-connected lumbar spine disability. Significantly, while the Veteran has reported experiencing urinary incontinence as well as neurological symptoms of the bilateral lower extremities, as above, the July 2020 VA examiner opined that the Veteran's urinary problems are not related to the Veteran's lumbar spine disability as the MRI of the lumbar spine does not indicate pathology which can cause urinary incontinence. The July 2020 VA examiner also opined that the Veteran's neurological symptoms of the lower extremities are not related to the Veteran's lumbar spine disability as such complaints are the result of documented sensory peripheral neuropathy, not radiculopathy. The Board accepts that the Veteran has functional impairment, pain, and pain on motion (see DeLuca) and finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher rating. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 20 percent rating is warranted, and no more. The evidence of record reflects that the Veteran's symptomatology for his lumbar spine disability warrants no more than a 20 percent disability rating. The Board finds that no higher rating can be assigned pursuant to any other potentially applicable diagnostic code. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. The claim of entitlement to a TDIU on an extraschedular basis prior to April 13, 2018 is remanded. By way of history, as above, the Veteran submitted the current claim for an increased rating for his service-connected lumbar spine disability in April 2008 and, in March 2017, the Board took jurisdiction of the issue of entitlement to a TDIU in connection with the lumbar spine issue pursuant to Rice, noting that the Veteran had claimed that he was unable to work due to his service-connected disabilities. Thereafter, in August 2020, while the case was in remand status, the AOJ granted a TDIU, effective April 13, 2018. However, as the Veteran's claim for a higher rating for the lumbar spine has pending since April 2008, the issue of entitlement to a TDIU prior to April 13, 2018 is still on appeal. A TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran is currently in receipt of a 70 percent disability rating for posttraumatic stress disorder, separate 30 and 20 percent disability ratings for the right knee, a 20 percent disability rating for the lumbar spine, and separate 10 percent disability ratings for tinnitus as well as bilateral hearing loss. Pertinent to the period on appeal beginning April 2008, the Veteran has combined disability ratings of 50 percent beginning April 21, 2008, 60 percent beginning March 29, 2013, and 90 percent beginning April 13, 2018. As such, the Veteran has met the minimum schedular criteria for a TDIU since April 13, 2018 pursuant to 38 C.F.R. § 4.16(a). Even though the Veteran does not qualify for a TDIU prior to April 13, 2018 pursuant to 38 C.F.R. § 4.16(a), it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An October 2010 VA vocational assessment shows that the Veteran had been unemployed since January 2010 but was aggressively seeking employment. On his July 2017 formal claim for TDIU, the Veteran reported that he stopped working full-time as a mechanic in January 2010 after he was let go due to falling and having to use a cane. The Veteran wrote that he had tried to obtain employment but no one would hire him due to his lumbar spine and right knee disabilities. However, a February 2016 VA spine examination shows that the Veteran repaired lawn mowers and an April 2018 VA psychiatric examination shows that the Veteran worked part-time, approximately 12 hours per week, repairing lawn mowers. During the appeal period, several VA examiners have noted the Veteran's difficulty maintaining difficulty due to his service-connected disabilities. Specifically, the February 2016, March 2018, and July 2020 VA lumbar spine examiners each found that the Veteran's lumbar spine disability impacted the Veteran's ability to perform physical work. Furthermore, several VA examiners in 2018 found that, despite the Veteran's service-connected disabilities, he was able to perform sedentary work, which required exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. It was noted that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. Also, an April 2018 VA psychiatric examiner found that the Veteran's service-connected PTSD resulted in him having difficulty attending to or is easily distracted from the task at hand; difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task; and sleep disruption resulting in fatigue making concentration and focus on work assignments difficult. Given the fact that the claim for a TDIU has been pending since April 2008, the Veteran has been neither substantially nor gainfully employed since January 2010, and the claims file includes medical evidence suggesting that the Veteran may have been unemployable due to a combination of his service-connected disabilities prior to April 13, 2018, under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the TDIU claim should be submitted to the Director of Compensation Service for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis prior to April 13, 2018. The matter is REMANDED for the following action: Refer this case to the Under Secretary for Benefits of the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to April 13, 2018. Consideration should be given to the following: an October 2010 VA vocational assessment showing that the Veteran had been unemployed since January 2010 but was aggressively seeking employment (see VBMS, document labeled Assessment Results, receipt date 10/21/10, pages 1 and 9); the Veteran's July 2017 formal claim for TDIU wherein the Veteran reported that he stopped working full-time as a mechanic in January 2010 after he was let go due to falling and having to use a cane and that he had tried to obtain employment but no one would hire him due to his lumbar spine and right knee disabilities (see VBMS, document labeled VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, receipt date 7/17/17, pages 2 and 3); a February 2016 VA spine examination showing that the Veteran repaired lawn mowers and an April 2018 VA psychiatric examination shows that the Veteran worked part-time, approximately 12 hours per week, repairing lawn mowers (see VBMS, documents labeled C&P Exam, receipt date 2/29/16, page 10 and C&P Exam, receipt date 4/23/18, page 5); the February 2016, March 2018, and July 2020 VA lumbar spine examination reports wherein the examiners each found that the Veteran's lumbar spine disability impacted the Veteran's ability to perform physical work (see VBMS, documents labeled C&P Exam, receipt date 2/29/16, page 9; C&P Exam, receipt date 4/11/18, page 10; and C&P Exam, receipt date 7/30/20, page 12); several 2018 VA opinions finding that, despite the Veteran's service-connected disabilities, he was able to perform sedentary work, which required exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull (see VBMS, documents labeled C&P Exam, receipt date 3/29/18, page 16; C&P Exam, receipt date 4/11/18, page 13; C&P Exam, receipt date 4/11/18, page 10); and an April 2018 VA psychiatric examination report finding that the Veteran's service-connected PTSD resulted in him having difficulty attending to or is easily distracted from the task at hand; difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task; and sleep disruption resulting in fatigue making concentration and focus on work assignments difficult (see VBMS, document labeled C&P Exam, receipt date 4/23/18, page 11). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.