Citation Nr: 1305672 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 06-10 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable evaluation for hypertension. 2. Entitlement to an increased evaluation for lumbar disc disease, currently evaluated as 40 percent disabling. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from June 1950 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from October 2004 and January 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, the Philippines, and San Diego, California. In December 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in June 2010 and February 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is 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). In this regard, the Board notes that VA attempted to obtain SSA records pertinent to the Veteran, but no such records were available. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the rating period on appeal, the competent clinical evidence of record indicates that the Veteran's hypertension is manifested by a systolic pressure predominantly less than 160 and a diastolic pressure predominantly less than 100, with no history of a diastolic pressure predominantly more than 100. 2. Throughout the rating period on appeal, the Veteran's service-connected disc disease of the lumbar spine, has been manifested by complaints of pain and stiffness; objectively, the Veteran did not have ankylosis, or neurologic abnormalities associated with his disability, nor was he prescribed bed rest by a physician. 3. The Veteran is service connected for lumbar disc disease evaluated as 40 percent disabling, urethritis evaluated as 40 percent disabling, hypertension evaluated as noncompensable, right herniorrhaphy evaluated as noncompensable, and psoriasis evaluated as noncompensable. His total disability evaluation is 60 percent. 4. Giving the Veteran the benefit of the doubt, he is unable to follow a substantially gainful occupation due to his service-connected disability(ies). CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.104, Diagnostic Code (DC) 7101 (2012). 2. Throughout the rating period on appeal, the criteria for an evaluation in excess of 40 percent for lumbar disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 - 5243 (2012). 3. The criteria for the award of TDIU benefits have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided to the Veteran in July 2004, October 2006, October 2009, and April 2011. VA also has a duty to assist the Veteran in the development of the claims. The claims file contains VA and private medical records, lay statements, the statements of the Veteran in support of his claims, and a July 2012 formal finding of unavailability of Social Security Administration (SSA) records. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The Veteran was afforded VA examinations in May 2009, June 2010, and March 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate, as they include clinical examinations and interviews with the Veteran with regard to his symptoms and treatment. The reports of examination contain findings necessary to evaluate the Veteran's service-connected disabilities under the applicable diagnostic code rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Rating Disabilities - in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Rating Hypertension A 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 120 or more. A 60 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id. Rating musculoskeletal disabilities 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Rating disability of the spine (to include IVDS) 38 C.F.R. § 4.71a, provides that 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 is rated at 10 percent. A 20 percent evaluation is for assignment where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. DCs 5235 - 5243. IVDS may be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, or the General Rating Formula for Diseases and Injuries of the Spine (as outlined above), based on whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Hypertension The Veteran is service connected for hypertension with a noncompensable evaluation effective from December 1970. In June 2006, the Veteran, through his accredited representative, submitted a claim for an increased or compensable rating. As the Veteran's claim was received by VA in June 2006, the rating period on appeal is from June 2005, one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period. 38 C.F.R. § 3.400(o)(2) (2012). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The claims file includes numerous blood pressure readings for the Veteran as noted below: March 31, 2006 110/70 May 31, 2006 121/78 January 25, 2008 128/60 July 18, 2008 118/58 January 10, 2009 125/80 January 16, 2009 108/60 May 15, 2009 127/84 December 11, 2009 164/88 January 13, 2010 138/66 June 25, 2010 140/68 135/68 135/68 May 16, 2011 132/78 128/70 June 1, 2011 140/68 135/68 135/68 As noted above, a 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more. The above noted blood pressure readings are against a finding that the Veteran had a diastolic pressure predominately 100 or more; all of the readings are below 100. The above noted blood pressure readings are also against a finding that the Veteran had systolic pressure predominately 160 or more; of the 17 readings, only one was 160 or more. The Veteran would still be entitled to a 10 percent evaluation if the evidence of record reflected that he had a history of diastolic pressure predominantly 100 or more and he required continuous medication for control. The Board notes that the record does establish that the Veteran has been prescribed medication for his high blood pressure; however both of the above noted conditions must be met to warrant a 10 percent evaluation on the basis of continuous medication. The Veteran has considered the clinical history of record but does not find that it supports a history of diastolic pressure predominantly 100 or more. The Veteran, in a statement received by VA in December 2009, that he has been taking Hytrin for high blood pressure and prostate problems since the early 1990s. A February 1983 VA examination report reflects that the Veteran was not on antihypertensive medication but was on a low salt diet. It was noted that hypertension was not found. Clinical records in 1986 and 1987 do not reflect diastolic pressures of 100 or more (e.g. July 10, 1986 (120/78), February 16, 1987 (130/80), March 19, 1986 (130/80), and April 16, 1986 (118/82). A May 2009 VA examination report reflects that the Veteran had a history with high blood pressure in 1960 and has been asymptomatic. It was noted that he was currently on Hytrin and there had been no complications at any time of his hypertension. (A June 2010 VA examination report reflects that the Veteran was Hytrin for his enlarged prostrate.) The diagnosis was essential vascular uncomplicated hypertension. A December 2009 VA clinical record reflects that the Veteran had complaints of some palpitations which occur three times a day and which generally last one minute. The symptoms were noted to be new and mild. It was noted that the Veteran had "suboptimal control on medical therapy." It was further noted that Atenol was added to his medication. At the time of the examination, his blood pressure reading was 164/88. A June 2010 VA examination report reflects that the Veteran takes atenolol daily and his hypertension is under control. The examiner stated that "hypertension itself, unless it is malignant hypertension, which is not the case with this veteran, does not affect any physical activity." The Board acknowledges the Veteran's contention that his blood pressure would be expected to exceed the minimum requirements in the absence of blood pressure medication. The Board may not rate a Veteran upon such speculation. The governing regulation is clear that in order to achieve a compensable rating, certain systolic or diastolic levels must be met. In sum, the evidence of record is against a finding that the Veteran is entitled to an compensable evaluation for any time period on appeal. The Board finds that the preponderance of the evidence is against such an award, and thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disabilities. The Veteran's hypertension is manifested by high readings and the use of medication, both of which are in the rating criteria. As noted in the clinical records, his condition is "uncomplicated." In addition, the evidence does not reflect that the Veteran's hypertension has caused as marked interference with employment or frequent periods of hospitalization. Hence, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Spine The Veteran is service connected for lumbar disc disease, evaluated as 40 percent disabling from September 2001. In June 2004, the Veteran submitted a claim for an increased rating. As the Veteran's claim was received by VA in June 2004, the rating period on appeal is from June 2003, one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period. 38 C.F.R. § 3.400(o)(2) (2012). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), The Veteran would be entitled to a 50 percent rating for his spine if the evidence of record reflects that he had unfavorable ankylosis of the entire thoracolumbar spine, or he would be entitled to a 100 percent rating if the evidence of record reflects that he had unfavorable ankylosis of the entire spine. The Veteran would be entitled to a 60 percent evaluation if the evidence of record reflects that he has IVDS with incapacitating episodes (i.e. bed rest prescribed by a physician and treatment by a physician) having a total duration of at least six weeks during the past 12 months. The evidence of record, as discussed below, is against such findings. Correspondence dated in June 2004 from Dr. B.P. reflects his opinion that the Veteran's "back pain has continued to progress for the worse. He is unable to work now to earn an income because any activity makes his back pain a lot worse." No ranges of motion were provided. An August 2004 clinical record from Dr. H.L., reflects that the Veteran had complaints of pain with occasional radiation of the right hip. It was noted that a "physician has not recommended bed rest." It was further noted that the Veteran denied any bowel, bladder or erectile dysfunction. The examiner stated that "there is no evidence of intervertebral disc syndrome on examination today." Upon clinical examination of the thoracolumbar spine, there was no evidence of radiation of pain on movement. The Veteran had range of motion of flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 20 degrees; pain was at the end of all ranges. Range of motion of the lumbar spine was not limited by fatigue or incoordination. There was no ankylosis. May 2006 VA records reflect that the Veteran was seen for an initial consultation for his lower back pain. He reported that his pain is a 2 out of 10 and is in the lower back with no radiation. He reported that his back pain has gotten worse in the past two years. The Veteran reported that he did not take medication for his pain. The examiner stated that he did not feel that the Veteran's low back pain was too debilitating as the Veteran did not take pain medication. (Previous and subsequent clinical records reflect that the Veteran reported taking over the counter medication for pain.) A June 2010 VA examination report reflects that the Veteran had spine pain. It was noted that he did not have bowel dysfunction. He reported that he had intense pain, or "incapacitating episodes" of 9-10/10 approximately six times a year, each time lasting two to eight weeks. He alleviated the pain with over the counter medication, rest in bed, and application of hot towels. Upon clinical examination in June 2010, there was no abnormal spinal curvature, no titling of the pelvis, and no spasm. The Veteran had flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 11 degrees, left lateral flexion to 16 degrees, right lateral rotation to 22 degrees, and left lateral rotation to 28 degrees. There was no loss of function or fatigue, weakness, lack of endurance or incoordination. The examiner found that the Veteran's disability prevented sports, and had a moderate to severe effect on chores, exercise, recreation, and traveling. It had a moderate effect on shopping, a mild effect on dressing, and no effect on toileting, grooming, feeding, and bathing. A March 2012 VA examination report reflects that the Veteran reported that he had continuous ache with occasional sharp pain in the lower back which precluded any type of movement. He reported that this occurred three to four times a year and lasted six to eight weeks. Upon clinical examination, he had forward flexion to 20 degrees, with pain beginning at 15 degrees. He had extension to 15 degrees with pain beginning at 15 degrees. He had right lateral flexion to 10 degrees, with pain beginning at 10 degrees. He had left lateral flexion to 20 degrees with pain beginning at 15 degrees. He had right and left lateral rotation to 20 degrees, with pain beginning at 20 degrees. He was unable to perform repetitive use testing with three repetitions due to increasing pain after a single move. The examiner noted functional loss due to less movement than normal, and pain on movement. He did not have guarding or muscle spasm. He had no signs or symptoms of radiculopathy. He had no neurologic abnormalities or findings related to his spine disability. It was noted that he had intervertebral disc syndrome (IVDS), but did not have any incapacitating episodes within the past 12 months. The examiner noted that there "is marked limitation of motion of the back secondary to pain upon [range of motion] but there is no sciatic compression nor other neurologic dysfunction nor neurologic deficit." Based on the foregoing, the Board finds that a rating in excess of 40 percent is not warranted for any period on appeal. The evidence is against a finding of ankylosis, or a situation synonymous to ankylosis with consideration of the Veteran's complaints of pain on movement. In addition, the evidence is against a finding of loss of function or fatigue, weakness, lack of endurance or incoordination. (See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The evidence is also against a finding of neurologic related symptoms; therefore, an evaluation under DCs 8520-8530 is not warranted. The Board has also considered the clinician evidence of IVDS in March 2010. In this regard, the Board notes that the clinical evidence is against a finding of IVDS in August 2004. The Veteran would be entitled to a 60 percent rating under the formula for rating intervertebral disc syndrome if he had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board acknowledges that the Veteran has reported that he has had numerous incapacitating episodes a year, during which he could not move. The Board has also considered the lay statements. The statements reflect that the Veteran had to pay someone to help him with his maintenance work, that he has almost constant pain, that he was observed with a stiff pain and appeared to be in pain, and that he had to resign from his position as a manager due to pain, stiffness, and weakness in his lower back. An episode of incapacitation is defined under VA regulation as a period of signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evidence does not support a finding that the Veteran has had such incapacitating episodes (See August 2004 and March 2012 VA examination report.) In sum, the evidence of record is against a finding that the Veteran is entitled to a rating in excess of 40 percent for any time period on appeal. The Board finds that the preponderance of the evidence is against such an award, and thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular rating -38 C.F.R. § 3.321(b)(1) As noted above, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The Board acknowledges the evidence of record which reflects that the Veteran has considerable pain due to his back, and his contentions that the pain flare-ups and prevents him from any activity for several weeks at a time. Although pain is not expressly stated in the rating criteria, it is an accepted component of limitation of motion (e.g. motion is limited due to pain). Pain and limitation of motion are normal manifestations of the Veteran's spine disability and are contemplated under the rating schedule. In addition, the rating criteria considers that pain can cause incapacitating episodes and prescribed bed rest. The Board finds the service-connected spine disability is not an exceptional or unusual disability picture and the available schedular rating criteria are adequate. Although the Veteran's back disability may have affected his ability to do physical work, such impairment is already contemplated by the applicable schedular criteria so that consideration of an extraschedular rating is not shown to be necessary. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating, itself, is recognition that industrial capabilities are impaired). Referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU - 38 C.F.R. § 4.16 (a) and 38 C.F.R. § 4.16(b) The Veteran is service connected for lumbar disc disease evaluated as 40 percent disabling, urethritis evaluated as 40 percent disabling, hypertension evaluated as noncompensable, right herniorrhaphy evaluated as noncompensable, and psoriasis evaluated as noncompensable. His total disability evaluation is 60 percent. Thus, he does not met the criteria for consideration of TDIU under 38 C.F.R. § 4.16 (a). As noted above, the Board finds that the Veteran is not entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) for his spine. An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Veteran has reported that he retired early from his work with the United States Government (working in personnel) in 1986 due to back pain. Subsequent to his retirement from the Federal government, he managed apartment buildings and was responsible for some of the maintenance. A February 2003 VA examination report reflects that the work was on a part time basis and that when he gets flare-ups, he usually gets his stepdaughter to do the physical parts of the job. In June 2004 correspondence , the Veteran reported that in August 2002, he went from a full time job making $2,200 month with an apartment and utilities to a part time job making $300 a month with an apartment and utilities. He further indicated that he stopped working in September 2003. Correspondence from Dr. B.P., dated in June 2004, reflects the doctor's opinion that the Veteran is unable to earn income because any activity increases his back pain. There are also lay statements of record which reflect that the Veteran had difficulty with pain at work. A June 2012 examination report reflects the opinion of the examiner that it is more likely than not that the Veteran's service-connected disabilities are sufficiently in combination to preclude him from maintaining non-sedentary employment. He was precluded from lifting more than 30 pounds, bending repeatedly, walking more than one mile, climbing more than two flights of stairs, and/or standing more than 30 minutes. It was noted that the Veteran is diagnosed with rheumatoid spondylitis which is a progressive systemic disorder, which, as opposed to non systemic spinal disorders, is progressive and not reversible with any treatment. In determining whether a total disability rating based on individual unemployability is warranted, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The degree of nonservice-connected disabilities will be disregarded when making a TDIU determination. See Blackburn v. Brown, 4 Vet. App. 395, 398 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341 4.16, 4.19. In a November 2012 memorandum, the Director of Compensation Service found that TIDU was not warranted. The Director reviewed the claims file, to include clinical records, and stated as follows: The evidentiary record, when considering the totality of the evidence does not support criteria for an extra-schedular finding of unemployability. The most recent VA medical opinion indicates the Veteran can engage in sedentary employment. The Veteran is not shown to be incapable of maintaining gainful employment due solely to his service connected disabilities. Therefore entitlement to an extra-schedular finding of TDIU is not warranted. The Board acknowledges that a clinician has opined that the Veteran is not precluded from non-sedentary positions; however, the Board also acknowledges that the Veteran reports extended periods of pain where he needs to lie down. In addition, lay statements of record reflect that the Veteran had to miss work on occasion due to pain. The Board also notes that the Veteran's most recent employment involved maintenance. While the Veteran has other disabilities that are not service-connected and which may affect his ability to work, the medical evidence of record establishes that he has a greatly reduced limitation of motion of the spine due to pain. In applying the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), the Board finds that TDIU under 38 C.F.R. § 4.16(b) is warranted based on the clinical findings of the Veteran's spine, the Veteran's statements as to his symptoms, and the Veteran's prior work experience. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a compensable evaluation for hypertension is denied. Entitlement to an increased evaluation for lumbar disc disease, currently evaluated as 40 percent disabling, is denied. Entitlement to TDIU is granted. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs