Citation Nr: 1237113 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 05-06 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a higher initial evaluation in excess of 10 percent for service-connected scoliosis, vertebral back pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active service from July 2001 to July 2004, and from December 2008 to March 2011. This matter is before the Board of Veterans' Appeal (Board) on appeal from an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the claim in January 2009, May 2010, and September 2011 for additional development. In a September 2012 Supplemental Statement of the Case (SSOC), the RO affirmed the determination previously entered. The case been returned to the Board for further appellate review. FINDING OF FACT The preponderance of the evidence does not show that the Veteran's service-connected back disability is primarily manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of thoracolumbar spine range of motion not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; the preponderance of the evidence also does not show that that the Veteran experienced any incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks due to his back disability. CONCLUSION OF LAW The criteria for an initial disability rating greater than 10 percent for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2004 of the criteria for establishing direct service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was not provided Dingess notice of how VA determines disability ratings and effective dates if service connection is awarded. However, in light of the denial of the Veteran's claim, there can be no prejudice. Moreover, the Veteran's claim for increased rating for his back disability arose from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist a Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained available service treatment records and identified VA treatment records. The Veteran also submitted written statements discussing his contentions. Additionally, the case was remanded in September 2011 so that the RO could endeavor to obtain any outstanding VA and private medical records identified by the Veteran. To date, the Veteran has not identified any additional records that have not been obtained. Thus, the RO substantially complied with this remand directive. See D'Aires v. Peak, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268, 271 (1998) violation when the examiner made the ultimate determination required by the Board's remand). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. The Board notes that not all of the Veteran's service treatment records are found in the claims file. In a letter dated in August 2012, the RO notified the Veteran of the unavailability of his some of his service treatment records and provided the Veteran an opportunity to submit the identified evidence. Also in August 2012, the RO issued a memorandum making a formal finding of non-availability of the service records. This memorandum detailed the efforts of the RO to obtain military records from the appropriate federal department. The Board's review of the claims file indicates that some of the Veteran's service treatment records have been associated with the claims file. In any event, the Board is mindful that, in a case such as this, where some service treatment records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that some of the Veteran's service treatment records are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened obligation set forth in Cuevas and O'Hare in mind. The Veteran was also afforded VA examinations with respect to his back disability. The Board finds the VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's back disability since the most recent October 2011 VA examination. As noted above, the case was previously before the Board on multiple occasions, with the most recent occurring in September 2011. The Board remanded the case so that the Veteran's most recent dates of active service could be confirmed and any outstanding medical records could be obtained. The Board further directed that the Veteran be afforded a VA examination to determine the current severity of his back disability. In December 2011, the Veterans Inquiry Branch of the Army Personnel Records Division verified that the Veteran most recent period of active duty was from December 2008 to March 2011. He did not identify any outstanding medical records was provided a VA examinations in October 2011. As explained above, the VA examinations and opinions are adequate to decide the case. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria for Increased Initial Disability Ratings Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for specific ratings for the disabilities. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. The evaluation assigned is determined by comparing the extent to which a Veteran's service-connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the schedule of ratings. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If two evaluations are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. At the outset, the Board notes that the Veteran is appealing the initial disability rating assigned for his back disability. As such, the claim requires consideration of the entire time period involved, and contemplated staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) ( "[Staged]" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating for flare ups or for functional loss due to weakness, excess fatigability, incoordination, or pain on use. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by visible behavior, such as facial expression or wincing, of the Veteran undertaking the motion. 38 C.F.R. §§ 4.40, 4.59. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The words "slight," "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although all the evidence has been reviewed, only the most salient and relevant evidence is set forth below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Factual Background and Analysis The Veteran contends that his back disability is more severe than what is reflected by the currently assigned 10 percent disability rating. By way of brief history, the RO granted service connection for the back disability in the October 2004 rating decision, as the RO determined that the Veteran's preexisting back condition permanently worsened as a result of his military service. The RO assigned a 10 percent disability effective from July 24, 2004. Thereafter, the Veteran perfected an appeal as to the initial rating assigned for his back disability. Throughout the appeal, the back disability has been rated under Diagnostic Code 5237. See 38. C.F.R. § 4.71a, Diagnostic Code 5237. The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5237 used for the evaluation of a lumbosacral strain. The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 20 percent evaluation is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion 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 evaluation is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Another Diagnostic Code that is also considered in this case is Diagnostic Code 5243 for intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, intervertebral disc syndrome is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes, whichever results in the higher rating. The Formula for Rating Intervertebral Disc Syndrome provides for a 20 percent evaluation was assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A note following the Diagnostic Code defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct. Service treatment records document the Veteran's report of back pain; these records do not include evidence relevant to the applicable diagnostic codes. In September 2004, the Veteran underwent a VA examination for his back disability. He described having constant back pain without any radiation. The Veteran reported difficulty with bending, stooping, and shoveling. Flare ups occurred with increased back pain without any other symptoms. He indicated that he was unable to work on his father's farm due to his back pain. The Veteran was employed as a student. The physical examination revealed that the Veteran walked with a normal gait, without ataxia. The spine was nontender and there was no evidence of spasms. He demonstrated lumbar spine flexion to 90 degrees in a seated position, flexion to 65 degrees in a standing position without pain, and total flexion to 80 degrees, with pain. Extension was to 10 degrees without pain, and to 20 degrees with pain. Lateral bending to the left and right was to 30 degrees without pain. The Veteran demonstrated 45 degrees of rotary motion to the right and left with pain. His range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. Straight leg raises were negative. The remainder of the neurovascular examination was within normal limits. The neurological examination revealed that his strength was normal and his sensation was intact. Deep tendon reflexes were 2+ and symmetric. He was diagnosed with subjective complaints of low back pain. The Veteran underwent a second VA examination in October 2011 to assess the severity of his back disability. He essentially reported that his low back pain had worsened since his military service and stated that he had learned to cope with his pain. The Veteran used a brace regularly. He indicated that flare ups did not impact the function of his thoracolumbar spine. The Veteran reported that he worked as a long distance truck driver and that he had problems with his job due to his back disability. The physical examination revealed thoracolumbar range of motion as follows: flexion to 90 degrees or greater, with pain beginning at 90 degrees or greater; extension to 30 degrees or greater, with pain beginning at 30 degrees or greater; right lateral flexion to 25 degrees, with pain beginning at 25 degrees; left lateral flexion to 30 degrees or greater, with pain beginning at 30 degrees or greater; and right and left lateral rotation to 30 degrees or greater, without pain. Repetitive testing revealed right lateral flexion to 20 degrees, without any other changes in the Veteran's lumbar spine range of motion. Functional loss and/or impairments were identified as less movement than normal, pain on movement, a mild scoliosis deformity, and a sensation of tightness. There was no tenderness with palpation. The examination revealed evidence of guarding and/or muscle spasms; however, this did not result in an abnormal gait or spinal contour. The associated neurological examination revealed normal muscle strength and sensation in the bilateral low extremities. Reflexes were hypoactive in the bilateral knees and ankles. Straight leg raises were negative. The was no evidence of radiculopathy. The Veteran denied experiencing any bladder or bowel symptomatology. The examiner determined that the Veteran did not have intervertebral disc syndrome. There were no spasms at the time of the examination and the Veteran denied experiencing any flare ups or incapacitating episodes. He reported having bad days when he experienced increased pain; however, he stated that his pain did not prevent him from working. Based on the evidence of record, the Board finds that an initial rating in excess of 10 percent for the Veteran's back disability is not warranted. As previously noted, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. None of the evidence of record reports a range of motion indicative of a 20 percent disability rating. The September 2004 and October 2011 VA examinations reveal that the Veteran demonstrated thoracolumbar flexion to at least 65 degrees, to include pain. The objective medical evidence shows that his combined range of motion totaled at least 225 degrees throughout the appeal. Moreover, none of the medical evidence of record shows scoliosis, reversed lordosis, abnormal kyphosis or muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour. Thus, an initial disability rating in excess of 10 percent is not warranted under the criteria of the General Rating Formula. It is necessary to consider, along with the schedular criteria, functional loss due to flare ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206- 07. The evidence includes the Veteran's complaints of low back pain and limited motion. Taking all of the evidence of record into consideration, the Board finds that the Veteran's spinal disability is likely manifested by some functional limitation due to pain on motion. Indeed, the September 2004 and October 2011 VA examination reports include the Veteran's report of pain with range of motion testing. However, even accounting for any limitations of his lumbar spine range of motion due to pain, the Veteran's range of motion still exceeds that which is required for a 20 percent disability rating. The Board finds that the currently assigned 10 percent rating contemplates any additional impairment due to pain. Essentially, there is no showing of any other functional impairment which would warrant a higher rating for these complaints of pain. 38 C.F.R. §§ 4.7, 4.10, 4.45, 4.59, 4.71a. Also pertinent in this case is whether an increased disability rating is warranted under the criteria for intervertebral disc syndrome used for evaluating incapacitating episodes. However, the Veteran's back disability has not been shown to have resulted in incapacitating episodes (requiring bed rest/treatment prescribed by a physician) having a total duration of at least 2 weeks but less than 4 weeks during the past twelve months. In this regard, the Veteran denied having any incapacitating episodes during the October 2011 examination. As such, a disability rating in excess of 20 percent for incapacitating episodes under Diagnostic Code 5243 is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered whether an increased disability rating is warranted based upon the granting of a separate neurologic disability rating related to the lumbar spine. However, the evidence of record does not show the existence of any associated neurologic abnormalities, such as bladder or bowel complaints, that are related to the service-connected low back disability. Moreover, the objective evidence does not show, nor does the Veteran allege, that he experiences any neurological symptomatology in his bilateral lower extremities due to his service-connected back disability. Therefore, a separate rating is not warranted for neurological impairment, as no such impairment is shown. In deciding the Veteran's increased rating claim, the Board has considered the determination in Fenderson, 12 Vet. App. at 126 and whether the Veteran is entitled to an increased evaluation for any additional separate periods based on the facts found during this appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to a disability rating higher than what is currently assigned at any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that increased evaluations are warranted. Additionally, the Board has considered the Veteran's statements that a higher disability rating is warranted for his back disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report his back symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability relating a back disability to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his disability is evaluated. The Board has also considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for the Veteran's service-connected back disability. Accordingly, the appeal is denied. The Board finds that the Veteran's back disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's back disability is adequately contemplated by the applicable diagnostic criteria. The criteria provide for higher ratings, but as has been thoroughly discussed above, the rating upheld herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. Finally, although the Veteran has submitted evidence of his medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. In fact, during all of the October 2011 VA examination, he reported that he was employed as a truck driver. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a disability rating in excess of 10 percent for a back disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs