Citation Nr: 21070326 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-27 755 DATE: November 23, 2021 ISSUES Entitlement to a disability rating in excess of 10 percent prior to January 13, 2021, and in excess of 20 percent thereafter for service-connected lumbar spine disability. Entitlement to a total disability rating based on individual unemployability for the period prior to January 13, 2021. ORDER Entitlement to a disability rating in excess of 10 percent prior to January 13, 2021, and in excess of 20 percent thereafter for service-connected lumbar spine disability is denied. REMANDED Entitlement to a total disability rating based on a total disability rating based on individual unemployability for the period prior to January 13, 2021 is remanded. FINDINGS OF FACT 1. For the period prior to January 13, 2021, the Veteran's service-connected lumbar spine disability is manifested by forward flexion of the thoracolumbar spine more than 60 degrees but not greater than 85 degrees as well as combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; there was no objective evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations. 2. For the period from January 13, 2021, the Veteran's service-connected lumbar spine disability is manifested by forward flexion of the thoracolumbar spine more than 30 degrees but not greater than 60 degrees as well as combined range of motion of the thoracolumbar spine not greater than 120 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation greater than 10 percent for service-connected lumbar spine disability prior to January 13, 2021 have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an evaluation greater than 20 percent for service-connected lumbar spine disability from January 13, 2021 forward have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on a period of active duty in the United States Army from July 1973 to September 1973, along with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019 and August 2021, the Board remanded this matter for further development. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As it relates to the issue of TDIU, including extraschedular consideration, the Board finds that further evidentiary development is required before the claim on appeal can be adjudicated. Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 10 percent prior to January 13, 2021, and in excess of 20 percent thereafter for service-connected lumbar spine disability. Lumbar Spine Disability Legal Standards The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5237 for lumbosacral strain. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2020). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, DC 5243. The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating. The Board will briefly discuss Diagnostic Code 5003 for degenerative arthritis, given that the Veteran has been diagnosed with this for his lumbar back. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5242 is now titled "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." The title of Diagnostic Code 5243 is now "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Id. No other changes in 38 C.F.R. § 4.71a are applicable for this particular appeal. Lumbar Spine Disability Evidence and Analysis The Veteran's lumbar spine disability was granted service connection with a 10 percent rating effective from August 6, 1976, the date he filed his claim for service connection. On November 21, 2011, the Veteran submitted a claim for an increased rating, requesting a 60 percent rating for his back disability and stating that he now had to wear a back brace. In an August 2013 rating decision, the RO continued the Veteran's 10 percent rating. The Veteran filed a notice of disagreement on May 8, 2014 and requested the maximum rating for his lumbar back disability. In a June 2021 rating decision, the RO granted an increased rating to 20 percent effective January 13, 2021, forward. Turning to the evidence of record, VA first provided an MRI in November 2011 as part of the regular treatment for the Veteran's back. The results revealed mild multilevel degenerative changes with no significant spinal canal or neural foraminal stenosis bilaterally, as well as mild edema within the anterior endplates of L1, L3 and L5 likely on the basis of degenerative changes. The Veteran was afforded a VA examination for his back in February 2012. The examiner diagnosed lumbar spine degenerative joint disease. The Veteran reported at that time that his condition was worsening. He reported that he experienced achy pain and some weakness in his left side, though he admitted he had a left shoulder torn rotator cuff. He reported that he had trouble sleeping due to his back disability. The Veteran also stated that he was taking tramadol for pain. He reported weekly flare- ups which were severe and lasted hours. It was noted that his range of motion was very limited during flare ups. The examiner noted that the Veteran had a normal posture and gait. Range of motion measurements for forward flexion was to 70 degrees, extension was measured to 20 degrees, left and right lateral flexion was zero to 20 degrees each and left and right lateral rotation was zero to 30 degrees each. The Veteran reported that he had used a brace in the past when he worked but was no longer using one. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Objective evidence of tenderness and pain with motion was noted. The examiner noted that although there was objective evidence of pain, there was no additional loss of range of motion after three repetitions. There was neither ankylosis nor muscle atrophy. Sensory examination and reflex exam findings were normal. The examiner opined that the Veteran's lumbar spine disability would cause increased absenteeism from work and also cause issues with him lifting or driving. It was noted that he was not working full time due to pain. VA treatment records reflect that the Veteran has continued to receive ongoing treatment for his back condition during the period on appeal. Notably, the Veteran sought treatment in May 2019 for pain in the middle of his back which he had been experiencing for the prior 2 weeks. The Veteran reported that he had sought private treatment and had been given a shot in his hips for spasms and had also been prescribed ibuprofen and methocarbamol. The Veteran was afforded another VA examination for his lumbar spine disability in January 2020. The examiner continued the diagnosis of degenerative joint disease of the lumbar spine and also diagnosed degenerative disc disease of the lumbar spine. The Veteran reported that the condition of his back had remained the same. He stated that he was experiencing constant back pain along the median line of the spine. The Veteran reported that his back disability limited his ability to work in his prior occupations as a mechanic and truck driver. He reported that he experienced flare ups which resulted in intermittent back spasms. Range of motion measurements for forward flexion was to 90 degrees, extension was measured to 30 degrees, left and right lateral flexion was zero to 30 degrees each and left and right lateral rotation was zero to 30 degrees each. Objective evidence of pain was noted on the examination, but it did not result in functional loss. There was no objective evidence of pain on palpation or localized tenderness, though there was evidence of pain on weightbearing. There was no loss of range of motion after 3 repetitions. The examiner noted that after repeated use over time and during flare ups the Veteran's functional ability would be limited due to pain. The examiner estimated that after repeated use over time as well as during flare ups, range of motion in flexion would be 80 degrees, in extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 20 degrees each. No guarding or muscle spasm was noted. Muscle strength was 5 on a scale of 5. No muscle atrophy was noted. No ankylosis and no other neurological abnormalities were noted. No IVDS was noted. The Veteran did not require the use of any assistive devices. The examiner reported that the Veteran would have difficulty with heavy lifting due to his back disability. Buddy statements from the Veteran and his wife, P.S., which are dated from September 2020 were added to the claims file in January 2021. The Veteran reported that as he has gotten older his back pain has become more intense and constant. He reported that his back disability has caused increasing limitations with him, including with his ability to work. The Veteran's wife stated that the Veteran has dealt with back pain and could not do any heavy bending or lifting. She also wrote that he had to lay in bed in a certain position in order to keep his back from causing him problems. The Veteran was most recently afforded a VA examination for his lumbar spine disability in April 2021. The examiner diagnosed degenerative disc disease other than IVDS. The Veteran reported that the condition of his back had worsened. The Veteran reported severe flare ups occurring 2 or 3 times a week and lasting 5 to 6 hours. The flare ups caused pain and stiffness and were all alleviated by cortisone shots. The Veteran reported an inability to sit, stand or walk for long periods of time. Range of motion measurements for forward flexion was to 45 degrees, extension was measured to 15 degrees, left and right lateral flexion was zero to 15 degrees each and left and right lateral rotation was zero to 20 degrees each. There was no evidence of crepitus. There was objective evidence of moderate pain on palpation or localized tenderness. There was no loss of range of motion after 3 repetitions. The examiner noted that after repeated use over time and during flare ups the Veteran's functional ability would be limited due to fatigability. The examiner estimated that after repeated use over time as well as during flare ups, range of motion in flexion would be 40 degrees, in extension to 10 degrees, left and right lateral flexion to 10 degrees each, and left and right lateral rotation to 15 degrees each. Although muscle spasms were noted there was no guarding or muscle spasms resulting in abnormal gait or spinal contour. Muscle strength was 5 on a scale of 5. No muscle atrophy was noted. No ankylosis and no other neurological abnormalities were noted. No IVDs was noted. The Veteran did not require the use of any assistive devices. The examiner reported that the Veteran's back disability had no impact on his ability to function in an occupational environment. For the period prior to January 13, 2021 For the period prior to January 13, 2021, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 10 percent disability level. An evaluation of 10 percent may be granted 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, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. The Board notes an evaluation of 10 percent for this period, but no higher, is based upon the lowest forward flexion of 70 degrees during this period, at the February 2012 VA examination as well as a combined range of motion for the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. A higher rating of 20 percent is not warranted because such symptomatology has not been shown for the relevant time period which demonstrates 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 is not greater than 120 degrees. Nor does the evidence show that the Veteran suffers from muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, there has been no evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Therefore, a higher, 20 percent disability rating for the relevant period is not warranted. For the period from January 13, 2021 forward For the period from January 13, 2021 forward, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 20 percent disability level. An evaluation of 20 percent may be granted 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 greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board notes an evaluation of 20 percent for this period, but no higher, is based on the lowest forward flexion of 40 degrees during this period, as well as a combined range of motion of the thoracolumbar spine not greater than 120 degrees, at the April 2021 VA examination. A higher rating of 40 percent is not warranted because such symptomatology has not been shown for the relevant time period that demonstrates forward flexion of the thoracolumbar spine of 30 degrees or less. Nor does the evidence show that the Veteran suffers from favorable ankylosis of the entire thoracolumbar spine. In fact, ankylosis has never been diagnosed in this Veteran since service connection in 1976. Conclusion When assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, the Board notes it has considered the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's statements of flare-ups were recorded during his VA examinations, as well as their impact on the Veteran's functional impact of the lumbar back disability. The Board has also noted the possibility of additional diagnostic codes, to include Diagnostic Code 5242 for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, which now also includes a reference to Diagnostic Code 5003. However, the Board here refers to Note (1) under Diagnostic Code 5003, where potential 10 percent or 20 percent ratings will not be combined with ratings based on limitation of motion. Here, the Veteran's lumbar back disability is rated both 10 percent and 20 percent under Diagnostic Code 5237 based on limitation of motion, and an alternative diagnostic code based on degenerative arthritis does not benefit the Veteran. In reaching the above conclusion, the Board has not overlooked the Veteran and his wife's statements with regard to the severity of his service-connected back disability. In this regard, the Veteran and his wife were competent to report on factual matters of which they had firsthand knowledge, e.g., muscle spasms and limited ability to engage in driving and heavy lifting. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements, treatment records and during the course of his VA examinations. However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has afforded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for the thoracolumbar back prior to January 13, 2021, and in excess of 20 percent from January 13, 2021 thereafter. See 38C.F.R. §4.71(a), Diagnostic Code 5243; see also 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Board concludes that the preponderance of the evidence is against the claim for an increased disability rating for the Veteran's service-connected lumbar spine disability, the benefit of the doubt doctrine is not for application, and an increased rating is not warranted. 38U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's lumbar spine disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond those already assigned, as noted in the discussion above. See Hart, 21 Vet. App. at 505. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a total disability rating based on a total disability rating based on individual unemployability for the period prior to January 13, 2021 is remanded. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs 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 paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each veteran's education, training, and work history). In the instant case, in the July 2019 Board decision, the Board inferred the claim of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). The Veteran has asserted that his service- connected lumbar degenerative disc disease and his service-connected unspecified depressive disorder have precluded him from maintaining substantially gainful employment. He has also submitted a December 2020 private opinion in which the examiner has opined that due to the Veteran's physical and mental limitations caused by his service-connected disabilities, he would have been unable to maintain substantial gainful employment from at least the date the Veteran filed his claim for an increased rating on November 22, 2011. The Veteran is currently service- connected for his lumbar spine disability with a 20 percent rating from January 13, 2021 and unspecified depressive disorder associated with his lumbar spine disability with a 70 percent rating effective January 13, 2021. As the Veteran had at least a minimum total 70 percent combined rating with a single disability at 40 percent or greater, here the unspecified depressive disorder, since January 13, 2021, he met the threshold percentage requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), effective from January 13, 2021. In a June 2021 rating decision, the Veteran was afforded a TDIU from January 13, 2021, forward. However, because the Board has inferred the issue a TDIU prior to the Veteran meeting the schedular eligibility pursuant to 38 C.F.R. § 4.16(a), the Board must consider whether the Veteran has met the extraschedular criteria pursuant to 38 C.F.R. § 4.16(b) prior to January 13, 2021. The Board cannot award TDIU under § 4.16(b) in the first instance, but must submit the matter to the Director of the Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board cannot award TDIU under § 4.16(b) in the first instance because it has no power to do so). The CAVC also noted in Ray v. Wilkie, 31 Vet. App. 58 (2019), that it directed the Board in that case to consider the following factors in the adjudication of any TDIU claim: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. at 73. As such, the Board finds that remand is necessary for an opinion from the Director, Compensation Service, regarding the possibility of an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) prior to January 13, 2021. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. 2. Contact the Veteran and request he submit or authorize for release any further private treatment records relevant to his TDIU claim. 3. Thereafter, refer the issue of entitlement to a TDIU to the Director, Compensation Service, for adjudication. Please include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16 (b). 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, Associate 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.