Citation Nr: 21026805 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 03-28 205 DATE: May 4, 2021 ORDER Entitlement to an increased rating of 40 percent disabling for lumbar myositis, degenerative joint disease, and bulging disc (low back disability) from March 19, 2001 to April 29, 2009 is granted. Entitlement to an increased rating in excess of 20 percent disabling for low back disability from April 30, 2009 to February 3, 2015 is denied. Entitlement to a total disability for individual unemployability (TDIU) prior to March 6, 2003 is denied REMANDED Entitlement to an increased rating in excess of 40 percent disabling from February 4, 2015 to March 22, 2015 and from July 1, 2015 is remanded. Entitlement to an extraschedular TDIU from March 6, 2003 is remanded. FINDINGS OF FACT 1. For the period from March 19, 2001to April 29, 2009, the Veteran's low back disability was manifested by severe limitation of motion. 2. For the period from April 30, 2009 to February 3, 2015, the Veteran's low back disability was not manifested by severe limitation of motion of the lumbar spine, forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the thoracolumbar spine, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. 3. The Veteran's service-connected disability is not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment for the period of March 19, 2001 to March 5, 2003. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 40 percent disabling from March 19, 2001to April 29, 2009 for the Veteran's low back disability has been met. 38 U.S.C.§1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71 4.71a, Diagnostic Codes 5235-5243, 5290, 5293 (2002, 2003). 2. The criteria for an increased rating in excess of 20 percent disabling from April 30, 2019 to February 3, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Codes 5237, 5243. 3. The criteria for a TDIU have not been met from March 19, 2001 to March 5, 2003. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were most recently appealed by the Board in a January 2019 Board decision. The Board finds that the remand instructions were in part substantially complied with. As such, part of the issues can be adjudicated upon and the rest must be remanded. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If an increase in disability occurred within one-year prior to the claim for increase, the increase is effective as of the date the increase was factually ascertainable. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (holding "that an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date"). 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. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. During the pendency of this claim, the criteria for rating disabilities of the spine in the VA Schedule for Rating Disabilities was revised effective September 23, 2002, and again effective September 26, 2003, and a third time effective February 7, 2021. The September 26, 2003 amendment, which assigned a new diagnostic code number to intervertebral disc syndrome (IVDS) (5243) and reworded some of the language, was non-substantive in nature. See Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509, 56,510 (Sept. 4, 2002) (indicating that the then-proposed amendment "would make editorial changes," but would not "represent any substantive change to the recently adopted evaluation criteria for intervertebral disc syndrome"). Accordingly, there are essentially three sets of criteria applicable to the evaluation of the Veteran's spine disability. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise, and thus may not apply the current rating criteria prior to its September 23, 2002 effective date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Super Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran's spine disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would afford the highest rating. Prior to September 23, 2002, Diagnostic Code 5293 provided a 10 percent rating for mild Intervertebral Disc Syndrome (IVDS), a 20 percent rating for moderate symptoms with recurring attacks, and a 40 percent rating for severe symptoms, with recurring attacks and with intermittent relief. A 60 percent rating was warranted when the IVDS was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, former Diagnostic Code 5293 (2002). Effective from September 23, 2002, IVDS is rated under the same criteria as now provided in Diagnostic Code 5243 discussed below. 38 C.F.R. § 4.71a, former Diagnostic Code 5293 (2002). Prior to September 26, 2003, under the version of DC 5292, a 10 percent rating is assigned for slight limitation of motion of the lumbar spine, a 20 percent evaluation is assigned for moderate limitation of motion of the lumbar spine, and a maximum 40 percent evaluation is assigned for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, DC 5292 (2002). Prior to September 26, 2003, sacro-iliac injury and weakness was rated according to DC 5294. Lumbosacral strain was rated according to DC 5295. These disorders warranted a noncompensable rating for slight subjective symptoms only. A 10 percent rating was warranted for characteristic pain on motion. A 20 percent rating was warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating was warranted for severe disorder with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5294, 5295 (2003). Prior to September 26, 2003, ankylosis of the lumbar spine was rated under former Diagnostic Code 5289, which provided 40 and 50 percent ratings for ankylosis that was favorable or unfavorable, respectively. 38 C.F.R. § 4.71a, former Diagnostic Code 5289 (2003). Ankylosis is immobility and consolidation of a joint due to disease, injury, or surgical procedure. Colayong v. West, 12 Vet. App. 524 (1999); citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28th Ed. 1994). Terms such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered DC 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2019). See 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made 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. Under the General Rating Formula, including DC 5242 and DC 5237, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is 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 when forward flexion of the thoracolumbar spine is 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; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 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, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. The General Rating Formula also, in pertinent part, provides 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. Note 2: (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. 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. Under DC 5243 (Intervertebral Disc Syndrome), a 20 percent disability rating is assigned 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 disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. DC 5243 provides the following Notes: Note (1): An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The revised schedule, in effect as of February 7, 2021, contemplating IVDS under DC 5243, provides that such criteria shall be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, DC 5242 should be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. The revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to DC 5237. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5237). 1. Entitlement to an increased rating in excess of 20 percent disabling for low back disability prior to February 4, 2015 The Veteran is in receipt of a 20 percent disability rating for the service-connected lumbar spine disability under the General Rating Formula for the entire rating period on appeal from March 19, 2001 to February 3, 2015. The Veteran generally contends that a higher rating for his lumbar spine is warranted for this period on appeal. The criteria for rating spine disabilities were previously amended, with changes effective on September 23, 2002 and September 26, 2003. Initially, under the old regulations which were in effect during this period on appeal (March 19, 2001 to February 3, 2015), DCs 5287, 5288, 5290, and 5291 pertain to disabilities of the cervical and dorsal spine and are not applicable to the service-connected lumbar spine disability. Further, the evidence does not show demonstrable deformity of a vertebral body (DC 5285), complete bony fixation of the spine (DC 5286), ankylosis of the lumbar spine (DC 5289), IVDS (DC 5293), sacro-iliac injury or weakness (DC 5294), or lumbosacral strain (DC 5295). Accordingly, these diagnostic codes (all which existed prior to September 26, 2003) are not applicable in the instant case. If a law or regulation changes during the course of an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 & 3-2000. A private treatment record from September 2001 reported that the Veteran suffered from chronic lower back pain secondary to disc lesions and that he should avoid forceful activities and strenuous exercises. In the June 2002 VA examination, the Veteran complained of constant and sharp low back pain which exacerbated from lifting, pulling, or any physical activity. He also complained of spasms of his back, discomfort, pain radiating to the mid upper back and weakness in both lower extremities. He denied fecal or urinary incontinence. When asked to opine on the effects of the Veteran's back disability on his usual occupation and daily activities, the examiner responded that the Veteran was independent in activities of daily living. The examiner noted that the Veteran experienced tenderness to palpation and spasms of the lumbar paravertebral muscle. The Veteran was diagnosed with lumbar myositis, degenerative disc disease, and bulging disc L3-L4 and L4-L5. There were no range of motion (ROM) measurements provided. In a July 2003 private medical treatment record, the examiner noted that the Veteran continued to experience low back pain which was worse than before. The examiner noted that the Veteran's MRI showed L3-L4 disc protrusion, L4-L5 bulging disc and degenerative disc disease. During the examination, the examiner noted that upon palpation of the L-S paraspinal muscles there were severe spasms and tenderness. SLR test indicated 45 degrees in the left side and 55 degrees on the right side. There was no atrophy or weakness present. Flexion of the L-S area was 30 degrees. Extension was 10 degrees. Lateral flexion of the trunk was 10 degrees on both the right and left side. Gait was slow with antalgic posture. The examiner opined that the Veteran's low back disability had worsened and that the compensation should be higher than 20 percent. Social Security Administration (SSA) records from August 2003 reflected that the Veteran had antalgic gait. Upon examination for ROM, the results reflected that the Veteran had flexion limited to 20 degrees and right and left lateral flexion were both limited to 15 degrees. A private treatment record from August 2003 reflected that the Veteran experienced pain to palpation from L1 to L5 and that there was right lumbar paravertebral muscle spasm and tenderness. ROM of the lumbar spine indicated flexion limited to 20 degrees, and right and let lateral flexion both limited to 15 degrees. The examiner indicated that lifting, carrying, and stooping were markedly impaired and that sitting, standing, walking, handling objects, and travelling were partially impaired. A September 2008 VA treatment record reflects that the Veteran's ROM was limited upon straight leg raising test due to low back pain. In the April 2009 VA examination the Veteran complained that his back disability has gotten progressively worse. The examiner indicated that the Veteran experienced numbness, paresthesias, leg or foot weakness, falls, and unsteadiness, but that these symptoms were unrelated to the back disability. The examiner indicated that the Veteran experienced fatigue, decreased motion, stiffness, weakness, spasms, and constant moderate pain. The examiner also indicated that the Veteran experienced deep bone pain and numbness of his foot. The Veteran reported that he experienced severe flare-ups due to prolonged sitting or standing. The examiner indicated that the Veteran experienced decreased ROM during a flare up, but that the Veteran did not experienced any incapacitating episodes of spine disease. The Veteran indicated that he used a cane and a back brace and that he is unable to walk more than a few yards. Upon examination, the examiner indicated that the Veteran did not have a normal gait and that he had stiff movements of the trunk with a one-point cane. The examiner indicated that the Veteran experienced spasms, guarding, pain with motion, and tenderness. ROM measurements reflected flexion limited to 59 degrees. Extension limited to 14 degrees. Left and right lateral flexion limited to 16 degrees and left and right lateral rotation limited to 20 degrees. The examiner indicated that there was objective evidence of pain on active ROM. There was additional limitations after three repetitions of ROM, mostly with pain. Flexion was limited to 41 degrees, extension was limited to 14 degrees, left and right lateral flexion was limited to 16 degrees, and left and right lateral rotation was limited to 20 degrees. Lasegue's sign was not positive. The Veteran reported that he was not currently employed and that his low back disability interfered with his job as a farmer since the work was too strenuous for his back. The examiner opined that the Veteran's low back disability would be aggravated if he were to return to his regular line of work as a farm and that he would eb considered unemployable to work in strenuous labor such as farming. The examiner furthered that the Veteran should not lift or carry more than 10 to 15-pound objects and that he should not bend at the trunk repetitively and that he should avoid high impact activity. A September 2009 private treatment record indicated that upon x-ray the Veteran had multilevel spondylo degenerative lumbar disc disease with impingement of left L4 exiting nerve root. A VA treatment record from August 2010 reported that the Veteran's ROM in the lumbar spine was limited in all planes specifically extension and rotation of the lumbar spine with associated pain on extension. The examiner also reported that the Veteran experienced antalgic gait while using a cane. In September 2010, the records note that the Veteran underwent a transforaminal epidural steroid injection with reports of significant pain control with less spasm. The examiner reported that ROM was functional with active and passive ROM in all planes of the lumbar spine. The Veteran's gait was normal. In a November 2010 statement, the Veteran reported that he has to use a back brace, a cane, heating pads, and excessive use of medication to treat his back disability. The Board finds that the Veteran is warranted an initial 40 percent disability rating, but no higher, from March 19, 2001 to April 29, 2009 and that a 20 percent disability rating is continued from April 30, 2009 to February 3, 2015. The Board finds that during the period of March 19, 2001to April 29, 2009, the Veteran's back disability had severe limitation of motion as indicated by the medical records. The Veteran's ROM was extremely limited in all planes and the Veteran suffered from spasms in his back. Moreover, the July 2003 private examiner credibly opined that the Veteran's back disability had significantly worsened and that an increase in disability rating was warranted. The Board finds that even though there was a change in the rating criteria during this period, the older criteria was more favorable to the Veteran as many of his symptoms and medical records reflected that the Veteran was severely impaired by his back disability during this period. A 40 percent disability rating is the highest rating under DC 5292. The Veteran is not warranted a higher disability rating through any other Diagnostic Codes since the Veteran did not have any ankylosis nor did he have incapacitating episodes. From the period of April 30, 2009 to February 3, 2015, the evidences does not indicate that the Veteran is warranted a rating higher than 20 percent. The rating criteria effective September 26, 2003 is only applied to this period, and thus the General Rating Criteria applies. The Veteran is not warranted a higher rating of 40 percent or higher because forward flexion of the lumbar spine is not 30 degrees or less and there is no form of ankylosis of the lumbar spine. Additionally, there is no indication that the Veteran suffered from IVDS or that he had any incapacitating episodes that lasted a total duration of at least four weeks but less than six weeks in the past year. The Board has considered and weighed the Veteran's assertions of functional impairment resulting from the lumbar spine disability; however, such functional impairment has been considered in arriving at the 40 percent disability rating from March 19, 2001 to April 29, 2009 and a 20 percent disability rating from April 30, 2009 to February 2015 for limitation of motion of the lumbar spine based on ROM measurements, to include as due to reports of painful motion, resulting in the functional impairment described above. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, at 206-07. 2. TDIU prior to March 6, 2003 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. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. During this appeal period, the Veteran was only service connected for a low back disability at a 20 percent disability rating. As such, the Veteran does not meet the schedular requirements for a TDIU during this appeal period as he does not have a single disability rated at 40 percent or more or have a combined disability rating of 70 percent or more. However, a total rating on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, consideration of whether the Veteran is, in fact, unemployable due to service-connected disabilities, is necessary in this case. The evidence of record does not establish that the Veteran is actual unable to obtain or maintain substantially gainful employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. An August 2001 sick slip reported that the Veteran had chronic back disease and that he could not be doing any physical activity. In an October 2001 statement submitted to SSA, the Veteran reported that he became unable to work because of his disabling condition on June 15, 2001. The Veteran was granted Social Security Administration (SSA) disability benefits due to his mental, back, and shoulder disabilities. The SSA decision claimed that the Veteran had not engaged in substantially gainful activity since August 13, 2003. A private treatment record from March 2002 reported that the Veteran should avoid forceful and strenuous exercises in general. In the June 2002 VA examination, the Veteran complained of constant low back pain, which exacerbated with lifting, pulling, or any physical activity. The examiner reported that the Veteran was independent in activities of daily living. A September 2002 VA treatment record reported that the Veteran was not working and that he had rented a farm and was planning to return it back to the owner. Upon review of all the evidence of record, both lay and medical, the Board finds that referral for an extraschedular consideration of a TDIU is not warranted. The Board has acknowledged and considered the Veteran's lay statements addressing his employability. The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations the Veteran experienced regarding his service-connected disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, the Board emphasizes that the Veteran's descriptions of his service-connected disability must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. The Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The Board does not find that the record demonstrates the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disability or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disability, even when his disability is assessed in the context of subjective factors such as his occupational background. Nor does the evidence show the Veteran's record places his case in a different category than other Veteran's with an equal level of disability. While the Veteran has said that he was unable to continue working, these statements must be weighed against the objective medical evidence of record. The Board notes a TDIU rating is not warranted where a veteran is unable to continue a chosen profession but, as already noted, the determinative question for purposes of TDIU is whether the Veteran's level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Simply stated, while perhaps the Veteran cannot work in his prior job or even in his prior vocation, the question is whether he can, in fact, work. This finding can, unfortunately, not take into consideration the Veteran's age or his nonservice-connected disabilities. At the outset, the Board acknowledges that the Veteran contends, and the evidence supports that he has severe occupational impairment. However, the weight of the probative evidence indicates that his functional impairment is limited to physical activity, but not for activities that accommodate the Veteran's disability and needs. There is indication that the Veteran should abstain from physical activity, but there is no indication that the Veteran would not be able to complete work requiring to sit down and be at a desk. To the extent that the medical evidence of record, including the VA examinations, address functional impairment due to the musculoskeletal disabilities, the Board notes that there is no probative medical opinion of record indicating that the Veteran was unable to work due to solely his service-connected disability and the Board does not find that these limitations would prevent all forms of employment. In this regard, the Board acknowledges that the Veteran's musculoskeletal disabilities result in difficulty with prolonged standing, walking, climbing, and squatting. However, the Board finds that these symptoms have been adequately considered under his currently assigned disability ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Although the Board recognizes that the Veteran believes that his service connected back disability has rendered him unable to work, as noted above, the Veteran's description of his service-connected back disability must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. Here, after considering the evidence of record, both lay and medical, the Board finds that the preponderance of the competent and credible evidence does not reflect that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disability. The Board is sympathetic to the Veteran's physical limitations, and acknowledges that the Veteran's service connected back disability will cause him problems, and may have caused him not to be able to function in some jobs; however, this fact, in and of itself, does not provide the basis to grant this case. Based on the foregoing, the Board finds that the weight of the probative lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disability or that hie is incapable of performing the mental and physical acts required by employment due solely to his service-connected back disability, even when his disability is assessed in the context of subjective factors such as his occupational background. The Board does not doubt that the Veteran's service-connected disability has an effect on his employability. The weight of the evidence, however, does not support a finding that his service-connected disabilities precluded his participation in substantially gainful employment. As such, the Board finds that referral for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted for the period prior to March 6, 2003. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 40 percent disabling from February 4, 2015 to March 22, 2015 and from July 1, 2015 is remanded. In the most recent VA examination from October 2019, the examiner indicated that the Veteran experienced "less movement than normal due to ankylosis, adhesion, etc." Later in the same examination, the examiner claimed that the Veteran did not have ankylosis. This contradiction makes it uncertain whether the Veteran has ankylosis or not. Because the Veteran is already assigned a 40 percent disability rating during this appeal period, the only thing that can provide him a higher disability rating is if he experiences unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. As such, it is important to clarify and determine whether the Veteran has ankylosis or not. VA's duty to assist is triggered and a new VA examination must be administered. 2. TDIU since March 6, 2003 The issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an increased rating for the Veteran's low back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must clarify whether the Veteran has ankylosis or not. (a.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) (b.) In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of extraschedular TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.