Citation Nr: 21070488 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-42 207 DATE: November 24, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to an increased rating for service-connected lumbar strain with degenerative disc disease greater than 20 percent during the period prior to July 10, 2015, and greater than 40 percent from that date, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's cervical spine disability, including arthritis and degenerative disc disease, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; is not secondary to the service-connected lumbar spine disability, and is not otherwise related to an in-service injury or disease. 2. A temporary total rating for convalescence was in effect for service-connected lumbar strain with degenerative disc disease from June 2, 2014 to September 1, 2014. 3. The Veteran's claim for an increased rating for the service-connected lumbar spine disability was received on July 10, 2015. 4. It is not factually ascertainable that the service-connected lumbar spine disability increased in severity on a date during the period from September 1, 2014 to July 10, 2015. 5. During the period from July 10, 2015, the Veteran's lumbar strain with degenerative disc disease is manifested by painful limitation of motion; unfavorable ankylosis of the entire thoracolumbar spine is not shown by competent evidence. There is no competent evidence of additional neurologic disability manifestations other than radiculopathy of the left lower extremity, or incapacitating episodes of intervertebral disc syndrome (IVDS) requiring prescribed bed rest having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 6. The Veteran's combined service-connected disability rating is 60 percent from July 10, 2015, and his combined 60 percent rating constitutes a "single" disability for purposes of schedular entitlement to a TDIU. 7. Throughout the rating period on appeal, according to the probative medical and other evidence of record, it is as likely as not that the Veteran's service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. During the period from September 1, 2014 to July 10, 2015, the criteria for a disability rating greater than 20 percent for lumbar strain with degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2020). 3. During the period from July 10, 2015, the criteria for a rating in excess of 40 percent for lumbar strain with degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2020); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2021). 4. Resolving reasonable doubt in his favor, the criteria are met for a TDIU throughout the rating period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1989 to July 1993, with additional reserve service. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision of the Agency of Original Jurisdiction (AOJ) that in pertinent part denied service connection for a cervical spine disability, granted an increased 40 percent rating for lumbar strain with degenerative disc disease, effective July 10, 2015, and denied entitlement to a TDIU. The Veteran testified before the undersigned Veterans Law Judge at an August 2019 hearing; a transcript of the hearing is of record. In a November 2019 decision, in pertinent part, the Board restored a 40 percent rating for left lower extremity radiculopathy, reopened a previously denied claim of service connection for a cervical spine disability, and remanded this case to the AOJ for additional development. In an August 2021 rating decision, the AOJ granted service connection and a noncompensable rating for a surgical scar associated with lumbar spine surgery on June 2, 2014. As the Veteran has not appealed this decision, the issue is not in appellate status. The case was subsequently returned to the Board. The Board notes that prior to the instant appeal, in a November 2014 rating decision, the AOJ granted a temporary total (100 percent) convalescence rating under 38 C.F.R. § 4.30 for the service-connected lumbar spine disability, effective June 2, 2014, with a 20 percent rating from September 1, 2014. At the Board hearing, the Veteran's representative stated that he is not pursuing the issue of entitlement to a temporary total rating with regard to lumbar spine surgery convalescence. Thus, that issue is not before the Board. 1. Service connection for a cervical spine disability The Veteran contends that he incurred a cervical spine disability during service in the same 1992 incident in which he injured his low back in Italy after jumping from a 50-foot cliff into water. See August 2019 Board hearing transcript, pages 5-6. Alternatively, he contends that his current cervical spine disability is secondary to his service-connected lumbar spine disability. See October 2007 Veteran's Application for Compensation and/or Pension (VA Form 21-526), Board hearing transcript, page 12. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is related to service, or is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of cervical degenerative disease with C6-C7 disc with left arm radiculopathy, and arthritis (degenerative joint disease) of the cervical spine as evidenced by the October 2015 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA and private treatment records show the Veteran was not diagnosed with a cervical spine disability until August 2006, and was not diagnosed with arthritis of the cervical spine until July 2015, decades after his separation from service and decades outside of the applicable presumptive period. Arthritis of the cervical spine was not shown on private magnetic resonance imaging (MRI) in August 2006, and a September 2008 VA X-ray study of the lumbar spine was normal. Service treatment records reflect that the Veteran had a low back injury on August 8, 1992; he was treated in the emergency room in Italy for complaints of low back pain after jumping off a cliff into water. He denied radiating pain to his legs, loss of consciousness or other symptoms. He denied hitting the bottom or any objects in the water. He did not complain of any neck or cervical spine symptoms, and a cervical spine disability was not diagnosed. A lumbosacral spine X-ray study was normal. The diagnosis was paraspinal muscle strain with spasm. A few days later, his low back pain was improved, and he was diagnosed with resolving paraspinal muscle strain. On separation medical examination in May 1993, his neck and spine were clinically normal. The Veteran denied recurrent back pain in May 1993, July 1993, July 1994, October 1996, and April 1997. On medical examination for the US Navy Reserve in October 1996, the examiner noted probable mild dorsal (thoracic) scoliosis, with no current disability. A neck disability was not diagnosed. Service treatment records are entirely negative for complaints, treatment or diagnosis of a neck or cervical spine disability. At the September 2008 VA examination, the Veteran reported that he was never treated for a cervical spine condition in service. He reported current constant low back pain and intermittent pain in the cervical spine. The Veteran has not contended that he experienced symptoms of a neck/cervical spine disability ever since service. Rather, he and his representative contend that although his lumbar strain presented immediately at the time of the 1992 accident, his cervical strain was gradual and worsened over time. See August 2019 Board hearing transcript, page 6. The Board finds that current contentions of continuity of cervical spine symptomatology are not credible as they are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing neck pain from August 1992 to March 2006 and initially reported the onset of neck pain as August 2006, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). See September 2006 private medical record from B.W., MD, showing that the Veteran reported that he had a two-week history of axial neck pain without antecedent trauma or prior symptoms of a similar nature. At that time, the Veteran reported that he awoke one morning with a significantly stiff neck and significant discomfort on attempted range of motion. He underwent chiropractic treatment by B.W., a chiropractor, with moderate clinical benefit, but his neck pain persisted. Dr. W. noted that an August 2006 MRI showed left lateral disc protrusion at C6-C7, and diagnosed left C6-C7 herniated nucleus pulposus. Further, while the Veteran asserts that the reported symptoms were manifestations of arthritis and degenerative disc disease, he is not competent to determine that these symptoms were manifestations of cervical spine arthritis and degenerative disc disease as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for a cervical spine disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's cervical spine disability and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The June 2020 VA examiner opined that the Veteran's cervical spine disability is not at least as likely as not related to an in-service injury, event, or disease, including his injury after jumping from a cliff during service in August 1992. The rationale was that as the name of his diagnosis implies, cervical degenerative disc disease with C6-7 disc protrusion with left arm radiculopathy (henceforth referred to as cervical degenerative disc disease) is a degenerative condition that occurs and naturally progresses with aging. Since the 2015 VA examination, the Veteran's neck condition has naturally progressed with findings of cervical spine arthritis which includes osteophytes and is termed spondylosis. A review of his service treatment records shows no evidence of a chronic neck condition in service including no diagnosis of cervical degenerative disc disease and spondylosis, and no evidence of a chronic neck condition. During the 2015 VA examination the Veteran reported that his neck condition began about 10-15 years prior without an injury event. This history is consistent with a degenerative process that occurs with age, and in the case of this Veteran between 2000 to 2005, which is many years after military service. Although the Veteran has since provided conflicting testimony of his neck condition occurring during service when he injured his back, his prior testimony and medical records from the time does not support a chronic neck condition occurring in service from service injury to his back. Had this event in service resulted in a chronic neck condition, it would have been documented, which is not evident in his service treatment records. Based on this history the Veteran's currently diagnosed cervical degenerative disc disease and spondylosis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including incident in which he injured his back after jumping off a cliff. The Board also concludes that the preponderance of the evidence is against finding that the Veteran's cervical spine disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The September 2008 VA examiner diagnosed chronic cervical spine strain with normal X-rays, and opined there was no evidence to indicate that this was related to his episode of acute low back pain in service. The October 2015 VA examiner opined that it is less likely than not that his neck condition was caused by his service-connected back condition. The rationale was that in the evidence provided, he was first noted to have a herniated disc in 2006, and medically, arthritis or disc disease of the lumbar back will not cause disease in the neck unless there is profound deformity of the back with severe kyphosis which is not noted in this Veteran's condition. The June 2020 VA examiner opined that the Veteran's cervical degenerative disc disease with C6-7 disc protrusion with left arm radiculopathy is instead more likely due to aging. The rationale was that degenerative disc disease is a degenerative condition that occurs and naturally progresses with aging. Since the 2015 VA examination, his neck condition has naturally progressed with findings of cervical spine arthritis which includes osteophytes and is termed spondylosis. Although the Veteran is service connected for lumbar strain with degenerative disc disease, this service connected condition involves the lower back which is anatomically separate from the neck and therefore has no direct impact and no ability to permanently aggravate his cervical degenerative disc disease and spondylosis. Therefore, the Veteran's currently diagnosed cervical degenerative disc disease and spondylosis is less likely than not aggravated beyond its natural progression by his service connected lumbar strain with degenerative disc disease. While the Veteran believes his cervical spine disability is related to an in-service injury, event, or disease, including a back injury during service when he jumped into the water from a cliff, or is proximately due to or the result of, or aggravated beyond its natural progression by the service-connected lumbar spine disability, he not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. 2. Increased rating for service-connected lumbar strain with degenerative disc disease The Veteran contends that he is entitled to a higher 100 percent schedular rating for his service-connected lumbar spine disability because the disability is manifested by pain, throbbing, shooting, aching, stiffness, lack of mobility, spasms, and cramping, and he has trouble sitting for more than an hour, standing, lifting, bending over, rotating at the waist, and doing yard work. See his December 2015 notice of disagreement, August 2019 Board hearing transcript. He also asserts that he is not able to work due to his lumbar spine disability and radiculopathy of the left leg. Since this appeal arises from a July 10, 2015 claim for an increased rating for the service-connected lumbar spine disability, the rating period on appeal begins on July 10, 2014 (one year prior to the increased rating claim). See 38 C.F.R. § 3.400(o). The effective date of an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. Id. Medical records reflect that on June 2, 2014, the Veteran was diagnosed with disc bulge at L5-S1, left, and underwent a lumbar microdiscectomy at L5-S1, left. In a November 2014 rating decision, the AOJ granted a temporary total (100 percent) convalescent rating under 38 C.F.R. § 4.30 for the service-connected lumbar spine disability, effective June 2, 2014, with a 20 percent rating from September 1, 2014. In the October 2015 rating decision on appeal, the AOJ granted an increased 40 percent schedular rating for service-connected lumbar strain with degenerative disc disease, effective July 10, 2015, under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, pertaining to degenerative arthritis of the spine, and lumbosacral strain, respectively. Since the lumbar spine disability was rated as 100 percent disabling prior to September 1, 2014, the issue in appellate status is entitlement to an increased rating for this disability greater than 20 percent during the portion of the one-year lookback period from September 1, 2014 to July 10, 2015, and greater than 40 percent from July 10, 2015. During the pendency of the appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities, including intervertebral disc syndrome (IVDS). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The revised criteria apply to all applications for benefits received by VA on or after that date; however, only the old rating criteria may be applied prior to the effective date. The General Rating Formula for Diseases and Injuries of the Spine was not revised. Prior to February 7, 2021, the former version of Diagnostic Code 5242 pertained to degenerative arthritis of the spine, while Diagnostic Code 5243 pertained to IVDS. During this period, the Board finds that since the August 2014 VA examiner diagnosed IVDS of the thoracolumbar spine, the service-connected lumbar spine disability is more appropriately rated under Diagnostic Code 5243 (pertaining to IVDS). 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). The Veteran has also been diagnosed with degenerative arthritis and degenerative disc disease of the thoracolumbar spine. See VA examinations in August 2014, October 2015, and August 2021. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "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." Diagnostic Code 5242 was amended on the same date to indicate that it applies to degenerative arthritis, degenerative disc disease other than IVDS (also, see Diagnostic Code 5003 or 5010). 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2021). Under both the former and revised rating criteria, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021). The Board finds that from February 7, 2021 the revised version of Diagnostic Code 5243 is still applicable in the Veteran's case, because he previously had disc bulge at L5-S1, and underwent a lumbar microdiscectomy at L5-S1, and a subsequent magnetic resonance imaging (MRI) scan of the lumbar spine showed small central and left paramedian disc protrusion at the L5-S1 level contributing to mild displacement of level more impingement of the exiting origin of the left S1 nerve root. See July 2016 private MRI, August 2021 VA examination report. However, neither version of Diagnostic Code 5243 is more favorable to the Veteran, as under each version, his service-connected lumbar spine IVDS is rated under the same 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 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. A 20 percent rating is warranted 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 is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a. 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 spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note 2; see also 38 C.F.R. § 4.71, Plate V. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. 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 factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Period from September 1, 2014 to July 10, 2015 During the portion of the one-year lookback period from September 1, 2014 to July 10, 2015, the Board finds that it is not factually ascertainable that an increase in the severity of the lumbar spine disability occurred on a particular date during this period. Although VA and private medical records during this period shortly after lumbar spine surgery reflect treatment for low back pain, the preponderance of the evidence is against a rating in excess of 20 percent for lumbar strain with degenerative disc disease. At the August 2014 VA examination, the Veteran did not report flare-ups that impacted the function of his thoracolumbar spine. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the evidence does not show limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A VA outpatient treatment record dated in late July 2014, six weeks after the Veteran's lumbar spine surgery and during the temporary total convalescence rating, the Veteran was doing well, with significant improvement of his longstanding leg pain. He denied axial spine pain. He was increasing his activities and walking for exercise. On VA examination in August 2014, range of motion testing was not performed because he was recovering from surgery and said he had been told to avoid bending or twisting his lumbar spine. The examiner explicitly stated that there was no ankylosis. Subsequent VA outpatient treatment records reflect treatment, including physical therapy, for low back pain and left leg pain, but do not show limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that from September 1, 2014 to July 10, 2015, the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The August 2014 VA examiner indicated that the Veteran had incapacitating episodes due to IVDS with a total duration of at least 2 weeks but less than 4 weeks in the past 12 months, and subsequent VA and private treatment records do not show that he was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran had any other neurological abnormality associated with his spine disability during this portion of the rating period. Period from July 10, 2015 During the period from July 10, 2015, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar strain with degenerative disc disease. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had daily flare-ups of pain that lasted a day (see October 2015 VA examination), or monthly flare-ups that lasted a day (see August 2021 VA examination) would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. On VA examination in October 2015, range of motion of the thoracolumbar spine was as follows: flexion to 25 degrees, extension to 30 degrees, and right and left lateral flexion and rotation were each to 20 degrees. Pain was noted on all motions but did not cause functional loss. After repetitive motion testing, there was no additional limitation of motion or functional loss. The examiner indicated that pain, weakness, fatigability, and incoordination did not significantly limit the Veteran's functional ability with flare-ups or with repeated use over a period of time, and that the Veteran did not have guarding or muscle spasm. The examiner stated that there was no ankylosis of the spine. On VA examination in August 2021, active and passive range of motion of the thoracolumbar spine was as follows: flexion to 40 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. Pain was noted on all motions but did not cause additional functional loss. After repetitive motion testing, there was additional limitation of flexion and extension due to pain: flexion was 30 degrees, and extension was to 25 degrees. Estimated range of motion after repeated use over time was as follows: flexion to 25 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees, due to pain, fatigability, and weakness. Estimated range of motion during a flare-up was as follows: flexion to 20 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees, due to pain, fatigability, and weakness. The examiner stated that there was no ankylosis of the spine. The examiner diagnosed degenerative arthritis, lumbar strain with degenerative disc disease, status post L5-S1 microdiscectomy without fusion, and left lower extremity radiculopathy. To the extent that the Veteran contends that his symptoms during a flare-up are like unfavorable ankylosis, the Board finds that even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The August 2014 VA examiner indicated that that the Veteran had incapacitating episodes due to IVDS with a total duration of at least 2 weeks but less than 4 weeks in the past 12 months, while both the October 2015 and August 2021 VA examiners stated that the Veteran does not have IVDS. VA and private treatment records do not reflect that the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran had any other neurological abnormality associated with his spine disability during this portion of the rating period. The October 2015, January 2021, and August 2021 VA examiners indicated that the right lower extremity is not affected by radiculopathy, and there are no other neurologic abnormalities or findings related to the thoracolumbar spine condition such as bowel or bladder problems or pathological reflexes. The Veteran asserts that he has weakness in his right leg that is related to his service-connected lumbar spine disability. See Board hearing transcript. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the condition to his service-connected lumbar spine disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the Veteran's statements that his right leg weakness is related to his spine condition are not competent evidence. Moreover, the competent medical evidence shows that strength in the right lower extremity was consistently 5/5 (normal) on VA examinations in August 2014, October 2015, January 2021, and August 2021. For the foregoing reasons, during the period from July 10, 2015, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for lumbar strain with degenerative disc disease. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As noted above, the Board finds that it is not factually ascertainable that an increase in the severity of the lumbar strain with degenerative disc disease occurred during the one-year lookback period prior to July 10, 2015. Extraschedular consideration The issue of consideration of an extraschedular rating for the lumbar spine disability was raised by the Veteran's representative at the August 2019 Board hearing. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of pain (variously described), limitation of motion, and muscle spasms, and that such symptoms are listed in Diagnostic Code 5243. Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. His complaints of limitations on sitting, standing, and rotating due to pain are contemplated by 38 C.F.R. § 4.45 and § 4.59. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. Moreover, in this case, the Veteran's service-connected lumbar spine disability has been manifested by pain and limitation of motion, which affects his ability to lift, bend, and engage in prolonged sitting, standing, and walking. As will be discussed below, the Board is granting TDIU throughout the period on appeal. Therefore, any marked interference with employment is contemplated by the grant of TDIU. As the Veteran is now in receipt of a total rating throughout the appeal period, the Board finds that the assigned ratings contemplate his symptomatology and disability level, and referral for extraschedular consideration is not warranted. 3. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected lumbar spine disability and radiculopathy of the left lower extremity render him unemployable. At the August 2019 Board hearing, the Veteran testified that he had trouble with sitting, standing, any type of lifting, bending over, rotating at the waist, or bending over. He asserted that his back disability prevented him from working, and that he could not sit for more than an hour or stand for a long time, and had weakness and mobility problems in his legs. He said he had not worked for the past year except for one day when he tried to work for as a movie extra, but could not work the entire day because of his disabilities. He said he last worked on a full-time basis in 2013 as a produce clerk, and had that job for 5 years. He left his last job in 2013, due to 3-4 acute back episodes that prevented him from going to work. He testified that he completed 3 years of college, studying archeology. In his March 2014 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he worked on a full-time basis as a produce clerk at C&K Markets from March 2008 to the present. He also reported that his disability affected full-time employment in November 2009, and he last worked full-time in October 2012. He reported prior work as a quality assurance inspector at Columbia Aircraft Manufacturing from 40 to 60 hours per week from January 2005 to January 2008, and full-time work as a produce clerk at Fred Meyers from July 2004 to January 2005. He reported that he completed two years of college, and it was almost impossible to sit for 15 minutes or more. In his August 2015 VA Form 21-8940, the Veteran reported that he last worked on a full-time basis in October 2012, as a grocer at C&K Market from 2007 to 2012. He also related that he worked as a commercial diver in 1994. He said he had pain, weakness, and limitation of motion in the back, neck, and left leg. At the October 2015 VA examination, the Veteran reported that he last worked in October 2012 as a produce clerk. Prior to service, he worked as a part-time bus boy, and in masonry. After service, he managed a convenience store and was a commercial diver for three years. He went back to college, and then worked through a temporary agency at a bottling company running a depalletizer machine. Next, he did underwater photography, and then worked as a produce clerk, then in quality assurance, and then as a produce clerk. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This appeal comes to the Board from the Veteran's July 10, 2015 claim for a TDIU. The Veteran has the following disabilities that are service connected: lumbar strain with degenerative disc disease (rated 20 percent prior to June 2, 2014, 100 percent from June 2, 2014 to September 1, 2014, 20 percent from September 1, 2014 to July 10, 2015, and 40 percent from July 10, 2015), left lower extremity radiculopathy (rated 40 percent disabling from October 15, 2013), and a surgical scar (rated noncompensable from June 2, 2014. From July 10, 2015, his combined service-connected disability rating is 60 percent. 38 C.F.R. § 4.25. From July 10, 2015, as the Veteran's radiculopathy of the left lower extremity and surgical scar were granted secondary to his lumbar spine disability and the three disabilities have a common etiology, his combined 60 percent rating constitutes a "single" disability for purposes of schedular entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (a)(2). Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected lumbar spine disability and radiculopathy of the left lower extremity. In August 2013, the Social Security Administration (SSA) determined that although the Veteran had functional limitations from his service-connected lumbar spine disability, his impairments were not severe enough to be considered disabling under SSA definitions. SSA determined due to his age, education, and past work as a quality assurance inspector, he was able to perform this type of work. In June 2014, the Veteran underwent lumbar spine surgery. At the August 2014 VA examination, during the Veteran's temporary total convalescence rating, the examiner opined that the Veteran's service-connected lumbar spine disability produced a functional impact on his ability to work, and stated that currently the Veteran would be severely limited, given his instructions to avoid bending and twisting, and could not lift more than 10 pounds. The examiner stated that it was unclear how long these restrictions would be in place, given the Veteran's report of a recent clinical decline. He was unable to sit for long periods of time due to pain. At the October 2015 VA examination, the examiner opined that due to the Veteran's lumbar spine disability, in order to avoid flares, he could function in a job that did not require bending over, too rapid twisting, sitting no longer than 30 minutes, standing in one place no longer than 15-20 minutes, and no lifting more than 20 pounds, and that the Veteran had only been trained for jobs that would require these actions. At the January 2021 VA examination, the examiner opined that due to service-connected radiculopathy of the left lower extremity, the Veteran could not stand or walk for a long time and could not lift or carry heavy objects. The August 2021 VA examiner opined that due to the service-connected lumbar spine disability, the Veteran had limitations to lifting or carrying 20 pounds or more, sitting, standing, or walking for more than 30 minutes without breaks, repetitive bending or twisting of the trunk, or walking for more than 50 yards without breaks. (Continued on the next page) The Veteran has between 2 and 3 years of college education, studying archeology, and a varied work history as a bus boy, mason, convenience store manager, commercial diver, running a depalletizer machine, underwater photography, produce clerk, and quality assurance inspector. Based on the lay and medical evidence of record, and after resolving reasonable doubt in the Veteran's favor, the Board finds that throughout the rating period on appeal, the Veteran's service-connected lumbar spine disability and radiculopathy of the left lower extremity preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.