Citation Nr: 21064710 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-21 005A DATE: October 21, 2021 ORDER Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD), to include adjustment disorder and cannabis abuse, is denied. Entitlement to a rating greater than 10 percent for service-connected lumbar spondylosis (previously rated as lumbosacral strain) prior to February 1, 2021, and a rating greater than 20 percent from February 1, 2021, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. An acquired psychiatric disorder, other than PTSD, to include adjustment disorder and cannabis abuse, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a psychosis did not manifest within one year of the Veteran's discharge from active service. 3. For the period prior to February 1, 2021, the Veteran's lumbar spondylosis was manifested by pain on motion of the lumbar spine on examination, but did not cause limitation of flexion to 60 degrees or less, or combined range of motion of the thoracolumbar spine to 120 degrees or less, or muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour, did not demonstrate neurologic impairment, and/or did not cause incapacitating episodes as defined by VA. 4. For the period from February 1, 2021, the Veteran's lumbar spondylosis was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less, did not demonstrate neurologic impairment, and/or did not cause incapacitating episodes as defined by VA. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder and cannabis abuse, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for an initial rating greater than 10 percent rating for lumbar spondylosis prior to February 1, 2021 and 20 percent from February 1, 2021, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Code) 5237, 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to September 1972. This matter comes to the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in August 2019 at which time the case was remanded for additional development. In August 2021, VA granted the Veteran's representative's request for a 90-day extension to submit additional evidence effective from June 2021. The Veteran and his attorney presented additional evidence in June 2021 which has been associated with the Veteran's claims. This evidence consists of a June 2021 report from a private vocational expert. Because the appeal was perfected after February 2, 2013, waiver of Agency of Original Jurisdiction (AOJ) review is presumed. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted by the claimant or his representative with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original Jurisdiction consideration). With respect to the psychiatric issue, the Veteran claimed service connection for PTSD and the RO addressed and adjudicated this claim as entitlement to service connection for PTSD. However, a review of the claims file shows additional diagnoses of adjustment disorder and cannabis abuse. The United States Court of Appeals for the Federal Circuit emphasized in Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) that though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. In this case, the Veteran specifically requested in a July 2013 statement that his claim be amended to include adjustment disorder. Accordingly, the Board has recharacterized the issue as noted above. A. Service Connection for a Psychiatric Disability Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases, including psychoses, are considered chronic, per se, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There are requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM 5) criteria, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304 (f). The Board notes that the DSM-IV has been updated with a Fifth Edition (DSM-5). Effective August 4, 2014, VA issued a now final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the rule apply to claims received by VA or pending before the agency of original jurisdiction (AOJ) as of August 4, 2014. This claim was pending before the AOJ as of August 4, 2014, the provisions therefore apply. See Schedule for Rating Disabilities Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). Willful misconduct such as drug or alcohol abuse is a bar to establishing service connection. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.1 (m), (n), 3.301(c)(3), (d); see also Allen v Principi, 237 F.3d 1368 (Fed. Cir. 2001). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. In February 1998, VA General Counsel concluded that, with respect to claims filed after October 31, 1990, 38 U.S.C. § 105(a), as amended by section 8052 of OBRA, and as implemented by 38 C.F.R. § 3.1 (m), precluded service connection of a disability resulting from alcohol or drug abuse based on the disability's incurrence or aggravation in service. See VAOPGCPREC 2-98. However, the Board notes that there is an exception to this rule. Where drugs are used for therapeutic purposes or where the use of drugs or addiction thereto, results from a service-connected disability, it will not be considered misconduct. See 38 C.F.R. § 3.301(c)(3). Facts and Discussion The Veteran's service treatment records show that he was referred for a psychiatric evaluation associated with administrative discharge proceedings in June 1972. They note that he had been a chronic disciplinary problem since reporting to his Navy ship in August 1970. They also note that he had no police record or social problems prior to service. They additionally note that he was somewhat nervous and lost his temper easily, but that such traits rarely got him in trouble. These records explain that the Veteran initially wanted out of the Navy but changed his mind and wanted to stay in. He was given an impression of no significant or disqualifying psychiatric condition and he was recommended for retention in the Navy "if command sees fit". An August 1972 RFAD (Release from Active Duty) examination shows a normal clinical psychiatric examination. Post-service records do not show that the Veteran has PTSD. The pertinent medical evidence includes a report from private psychologist (Dr. Anderson) in November 2012 who evaluated the Veteran, a VA PTSD examination report based on an in-person evaluation of the Veteran in July 2013, and an addendum examination report based on a claims file review in April 2020. None of these reports reflect a PTSD diagnosis. In fact, the VA examiner in July 2013 and the examiner April 2020 specifically found that the Veteran did not meet the criteria for PTSD under DSM-IV or DSM-5, respectively. The April 2020 examiner pointed out that PTSD screenings during the years from 2015 to 2018 were negative. Regarding Dr. Anderson's November 2012 diagnosis of adjustment disorder, unspecified, she does not relate this diagnosis to service. Rather, she notes that the Veteran reported a pattern of marked anger and acting out that originated secondary to the negative treatment that he experienced during his childhood that involved childhood abuse, changing homes, and foster care. This is the only report that reflects this diagnosis. The Veteran's remaining psychiatric diagnosis is cannabis abuse. Dr. Anderson rendered this diagnosis in November 2012, followed by the VA examiner's diagnosis of same in July 2013 and the addendum VA examiner's diagnosis in April 2020. These medical providers date the Veteran's cannabis abuse to prior to service at age 15. Dr. Anderson went on to opine that the Veteran's drug use was exacerbated by service. As noted, VA law and regulation provide that that an injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 U.S.C. § 1110; 38 C.F.R. § 3.301(d). Thus, in the absence of evidence showing that the Veteran's drug addiction is the result of a service-connected disability, it is not considered to have been incurred in the line of duty and service connected for this disability is not warranted. Id. The Board acknowledges the Veteran's assertion that his current acquired psychiatric disabilities are related to his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of acquired psychiatric disabilities falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset of symptoms, any opinion regarding the nature and etiology of his disabilities requires medical expertise which he has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board assigns no probative value to the Veteran's assertions that he has the acquired psychiatric disabilities that he claims and/or that such disabilities are related to service. For the reasons stated above, the Board finds that the most probative evidence of record shows that the Veteran does not have a PTSD diagnosis and his postservice diagnosis of adjustment disorder, unspecified, is not related to service. Moreover, his diagnosed cannabis abuse constitutes will misconduct and is thus not a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit-of-the-doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). B. Increased Ratings for Lumbar Spondylosis Pertinent Rating Criteria Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) 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 or more of the height. 38 C.F.R. § 4.71a, Codes 5237, 5242. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, the combined ROM 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 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Code. Note 2 states that, for VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. For the thoracolumbar spine, normal flexion is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM is 240 degrees for the thoracolumbar spine. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. A 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, with higher evaluations for incapacitating episodes of increased duration. Note 1 states that 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. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses musculoskeletal system and muscle injuries. 85 Fed. Reg. 76453 (November 30, 2020). The final rule went into effect on February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot pre-date the effective date of the amendments. The February 2021 revision did not change the rating criteria for Diagnostic Codes 5237, 5242 or 5243. However, it clarified for what conditions these Diagnostic Codes apply. Namely, Diagnostic Code 5242 and Diagnostic Code 5243 prior to February 2021 applies to degenerative arthritis of the spine and intervertebral disc syndrome (IVDS), respectively. 38 C.F.R. § 4.71a (2020). However, under the revised regulation effective February 2021, Diagnostic Code 5242 applies to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and Diagnostic Code 5243 applies to IVDS when there is disc herniation with compression and/or irritation of the adjacent nerve root. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. Facts An October 2012 report from private chiropractor, P. Yocum, D.C., shows that the Veteran had back pain ever since a motorcycle accident in service. He reported that on examination the Veteran's "true flexion (hips immobile)" was 20 degrees active and 20 degrees passive, and "true extension" was less than 5 degrees active and less than 5 degrees passive. He assessed the Veteran as having well advanced degenerative joint disease and osteoarthritis of the lumbar spine emphasis lumbosacral region. He added that the condition was permanent and progressive. The Veteran reported having constant back pain at a July 2013 VA examination that was partially alleviated by massage. He denied radiation to the lower extremities or neurological symptoms of numbness, tingling or weakness. Range of motion revealed flexion to 75 degrees with pain at 70 degrees, extension to 25 degrees with pain at 20 degrees, right and left lateral flexion to 30 degrees with pain at 25 degrees, and right and left lateral rotation to 30 degrees with pain at 25 degrees. Ranges of motion after repetitive use times three were the same with flexion to 75 degrees, flexion to 25 degrees right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees with no additional functional loss. The examiner relayed the Veteran's report of additional limitations to range of motion with flexion and extension during flares, but that he did not specify how much. He did note that limitations were due to pain and not weakness, fatigue, or incoordination. He also noted that flare ups affected the function of the Veteran's spine by slowing him down but did not prevent him from doing anything. Additional findings revealed normal muscle strength and reflexes, no muscle spasm or guarding, no muscle atrophy, and no IVDS. X-rays were not performed. VA outpatient records beginning in January 2016 show back pain as an active problem. They include a March 2016 initial chiropractic evaluation report which notes that the onset of low back pain was more than 30 years earlier and of insidious onset. The Veteran described his back pain at that time as an intermittent dull/sharp pain, and he assessed the pain severity as 3 to 6 on a pain scale to 10 (10 being the worst). Aggravating factors included bending/lifting and prolonged standing and walking. The Veteran denied radiating pain/paresthesia. The Veteran underwent a QTC examination for his back in February 2021 at which time he reported progressively worsening back pain. He described monthly flare ups of back pain that he assessed as moderate in degree. He said the flareups were precipitated by physical activity and alleviated by rest. He also said that he had functional loss manifested by back pain, stiffness, limited range of motion, difficulty with heavy lifting, bending, and prolonged walking or climbing stairs. Range of motion findings at the February 2021 QTC examination revealed lumbar flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain was noted with all ranges of motion. Pain was also noted on weight-bearing, nonweight-bearing and with rest/non-movement. There was no crepitus or tenderness found on examination. Range of motion after three repetitions revealed flexion to 55 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees and right and left lateral rotation to 15 degrees. Functional ability with repeated use over time was affected by pain and lack of endurance. Range of motion after repeated use based on information procured from relevant sources including the Veteran's lay statements revealed flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees with right and left lateral rotation to 10 degrees. Range of motion during flare ups due to pain and lack of endurance revealed flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees and right and left lateral rotation to 10 degrees. The Veteran was noted to not have localized tenderness or muscle spasm of the thoracolumbar spine. Muscle strength and reflex findings were normal. The Veteran did not have symptoms attributable to radiculopathy and he did not have ankylosis or muscle atrophy. Spine X-rays performed in February 2021 revealed mild spondylosis of the lower lumbar spine. Discussion 1. Greater Than 10 Percent Rating Prior to February 1, 2021 The ROM findings by Dr. Yocum in October 2012 are of little probative value since the accuracy of these findings is questionable. In this regard, Dr. Yocum reported that he provided the Veteran's "true (hips immobilized)" ROM findings without further explanation as to how he obtained these findings, to include whether he used a goniometer. The purpose of a goniometer is to assist in more precise measurements of motion. A goniometer to measure limitation of motion (LOM) is defined as "indispensable" by VA regulation in examinations conducted within VA. See 38 C.F.R. § 4.46. Thus, without confirmation of the use of a goniometer or further explanation as to how he obtained the "true" ROM findings, Dr. Yocum's findings are of little probative value. In view of the diminished probative value of Dr. Yocum's October 2012 ROM findings and the probative findings from the VA examination in July 2013 as noted above, the Board finds that the available evidence is insufficient to support a greater than 10 percent rating for the Veteran's lumbar spondylosis under the General Rating Formula based on LOM findings. 38 C.F.R. § 4.71a, Code 5237. As noted, findings at the July 2013 VA examination revealed forward flexion to 75 degrees even after repetitive use testing and a combined range of motion of 220 degrees. While the examiner relayed the Veteran's report of additional limitations to ROM with flexion and extension during flares due to pain, he did not specify how much. Notably, he did report that while these limitations slowed the Veteran down, they did not prevent him from doing anything that he wanted to do. Additional findings in July 2013 revealed normal muscle strength and reflexes, no muscle spasm or guarding, and no muscle atrophy. In terms of the pertinent VA treatment records, these records show chronic back pain as an active problem, but they do not contain findings sufficient to evaluate the disability under the pertinent rating criteria. 38 C.F.R. §4.71a, Code 5237. The Board has also considered other appropriate diagnostic codes, particularly Diagnostic Code 5243 for IVDS. However, the Veteran has not asserted nor do findings show that he has radicular symptoms nor have any other neurologic abnormalities been noted. Rather, the July 2013 VA examiner reported that the Veteran did not have IVDS of the thoracolumbar spine. Accordingly, the Board finds that a higher rating under the Formula for Rating IVDS based on Incapacitating Episodes is not warranted. The Board has not overlooked the statements by the Veteran regarding the severity of his disability during this period. The Veteran is competent to report on factual matters of which he had firsthand knowledge, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, in this instance, the objective medical evidence from the July 2013 VA examination is simply more probative. Thus, while there is no dispute that the Veteran has pain on motion, such symptoms are contemplated in his present rating and are not shown to result in functional loss approximating the criteria for a higher rating of 20 percent under Code 5242 requiring limitation of flexion to 60 degrees or less, or combined range of motion of the thoracolumbar spine to 120 degrees or less, or muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (painful motion does not equate to limited motion). For the foregoing reasons, a higher than 10 percent rating is not warranted for lumbar spondylosis at any point prior to February 1, 2021. As the preponderance of the evidence is against a higher than 10 percent rating, the benefit of the doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Rating Greater Than 20 Percent from February 1, 2021 Regarding the period from February 1, 2021, the Board finds that the Veteran does not meet the criteria for a higher than 20 percent rating. 38 C.F.R. § 4.71a, Code 5242. This is based on findings at the February 1, 2021, QTC examination. In this regard, ROM findings after repetitive use and during flare ups show a combined range of motion less than 120 degrees thus meeting the criteria for the present 20 percent rating. 38 C.F.R. § 4.71, Code 5242. It follows that absent a showing of forward flexion of the thoracolumbar spine 30 degree or less or favorable ankylosis of the entire thoracolumbar spine, a higher rating to 40 percent is not warranted. As noted, the Veteran was specifically found to not have ankylosis at the February 1, 2021 QTC examination and his forward flexion to include consideration of functional loss ranged from 45 to 60 degrees. The Board has also considered other appropriate diagnostic codes, particularly Diagnostic Code 5243 for IVDS. However, the Veteran has not asserted nor do findings show that he has radicular symptoms nor have any other neurologic abnormalities been noted. Rather, the February 2021 VA examiner reported that the Veteran did not have IVDS of the thoracolumbar spine. Accordingly, the Board finds that a higher rating under the Formula for Rating IVDS based on Incapacitating Episodes is not warranted. The Veteran's belief that he is entitled to a higher rating for his back disability from February 1, 2021, is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. Thus, while there is no dispute that the Veteran has pain on motion, such symptoms are contemplated in his present rating and are not shown to result in functional loss approximating limitation of forward flexion to 30 degrees or less. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (painful motion does not equate to limited motion). For the foregoing reasons, a higher than 20 percent rating is not warranted for lumbar spondylosis at any point from February 1, 2021. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU The Veteran asserts that his service-connected disabilities prevent him from securing or following substantial gainful employment. By way of background, after earning his GED degree in the Navy, the Veteran participated in an apprenticeship program for carpentry that he did not complete, and he held various positions including driving a taxicab, selling vacuum cleaners, and working as a carpenter. See private psychological report from Dr. Anderson in November 2012. The Veteran is currently service connected for post concussive headaches rated at 30 percent, equinovarus deformity, right foot, rated at 20 percent, lumbar spondylosis rated at 20 percent, tender scar, right lower extremity rated at 10 percent, tinnitus rated at 10 percent, left leg disability affecting muscle group XI, rated at 10 percent, left leg disability affecting muscle group XII, rated at 10 percent, traumatic brain injury rated at 10 percent, and noncompensable ratings for bilateral hearing loss, neuroma right lower extremity and nontender scar, right lower extremity. His combined rating evaluation is 80 percent. As the Veteran does not have a disability rated 40 percent or higher, a TDIU cannot be assigned on a schedular basis. See 38 C.F.R. § 4.16(a). However, even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board cannot, in the first instance, award an extraschedular TDIU, but must remand the matter to VA's Director of Compensation Service for consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, in consideration a private vocational expert's June 2021 opinion that the Veteran would not be able to maintain employment due to symptoms of his clawfoot, pain and fatigue, back and muscle injuries and mental health issues, "either alone or in combination", as well as Dr. Yocum's October 2012 opinion that the Veteran was "individually unemployable" due to a combination of service connected and nonservice connected disabilities, the Board finds that the evidence is sufficient to remand the matter to the agency of original jurisdiction for referral to the Director of the Compensation and Pension Service for extraschedular consideration. DEA The issue of entitlement to DEA benefits is inextricably intertwined with the TDIU issue being remanded. As such, the disposition of the DEA claim must be deferred pending the resolution of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Refer this case to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16(b). (Continued on the next page) 2. After completing the above development and any other development deemed necessary, readjudicate the issue for extraschedular TDIU consideration; thereafter, readjudicate the claim for DEA benefits. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.