Citation Nr: 1310322 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 07-07 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a higher initial rating in excess of 10 percent for lumbar sprain with degenerative disc disease at L4-L5. 2. Entitlement to rating in excess of 20 percent (effective December 14, 2010) for lumbar sprain with degenerative disc disease at L4-L5. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from February 1994 to May 1994, from April 1996 to August 1996, and from October 1999 to October 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in November 2010 for further development. The RO, in its November 2005 rating decision, granted the Veteran a 10 percent rating for his lumbar strain. In a December 2011 rating decision, the RO increased the rating to 20 percent effective December 14, 2010. Since the increase does not date back to the date of the original claim, there are two distinct time periods to consider. FINDINGS OF FACT 1. Prior to December 14, 2010, the Veteran's service connected lumbar sprain with degenerative disc disease at L4-L5 was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. 2. Effective December 14, 2010, the Veteran's service connected lumbar sprain with degenerative disc disease at L4-L5 was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. 3. The Veteran's service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. Prior to December 14, 2010, the criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected lumbar sprain with degenerative disc disease at L4-L5 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235-5243 (2012). 2. Effective December 14, 2010, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected lumbar sprain with degenerative disc disease at L4-L5 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235-5243 (2012). 3. The criteria for a TDIU due to his service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. Here, the Veteran was sent letters in May 2005 and November 2010 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board notes that, with respect to the Veteran's increased rating claim, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a September 2006 communication, and the claim was thereafter readjudicated in a January 2007 statement of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also 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 the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). The Veteran's service-connected lumbar strain has been rated under the provisions of Diagnostic Code 5237. The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also includes the following provisions: 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 spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Pursuant to Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. This latter manner of rating disability suggests that a rating higher than 60 percent might be awarded. It should also be noted that 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). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Turning to the evidence of record, an October 2004 MRI revealed desiccation with decreased signal intensity of L4-5 disc space with mild posterior disc bulging versus mild disc protrusion with compression of anterior thecal sac. Outpatient treatment reports reflect that the Veteran rated the severity of his back pain at a 2-3 out of 10 (January 2005) and that he denied pain in February 2005 (but noted soreness/stiffness that rated a 2/10). The Veteran underwent a VA examination in May 2005. The examiner reviewed the claims file in conjunction with the examination. The Veteran complained of chronic low back pain since 2003. Upon examination, the Veteran achieved forward flexion from 0-90 degrees (with pain at 70 degrees); extension from 0-35 (with pain at 35 degrees); left and right lateral bending from 0-35 degrees (with pain at 35 degrees); and left and right rotation from 0-30 degrees (with pain at 30 degrees). X-rays were normal. He was diagnosed with lumbar strain. A November 2005 outpatient treatment report reflects reports of occasional back pain, which was chronic. The Veteran began undergoing physical therapy in January 2006. He reported that his pain level was 5/10 prior to therapy. He stated that he was unable to perform factory work secondary to low back pain. Back pain was aggravated by lifting, bending, rotation or sidebending near the end of range of motion. His posture was hyperlordotic, with minimal rounding of the shoulders and slight military cervical spine. The Veteran stated that pain after treatment rated 1/10 in severity. The Veteran underwent another VA examination in December 2006. He complained of constant, sharp, low back pain that he rated an 8/10 in severity. The pain radiated to his buttocks. When asked how many times he was incapacitated in the past year, the Veteran stated that he had to go to the emergency room approximately 4 times in order to get stronger medication. He reported that his low back would get stiff, and that he experienced loss of flexion (0-75 degrees). He had to lay down when the disability flared up. He reported that he was able to walk without assistance for a couple of blocks. He denied being unsteady on his feet or having problems with falling. He used a TENS unit. He had difficulty putting his shoes and socks on during flare-ups. He also reported that he avoids going places due to back pain. He stated that he worked in law enforcement and that he was having difficulty performing his job due to back pain. He also could not play with his daughter and had difficulty running, playing basketball, and bowling. He could drive up to 1 hour in his own vehicle. He had increased difficulty driving his squad car (he could only do so for 1/2 hour). Upon examination, the Veteran achieved forward flexion from 0-90 degrees (with pain at 75 degrees); extension from 0-30 (with pain at 30 degrees); left and right lateral bending from 0-35 degrees (with pain at 35 degrees); and left and right rotation from 0-30 degrees (with pain at 30 degrees). There was no additional limitation due to weakness, lack of endurance, incoordination, or fatigability following repetitive motion. There was lumbar tenderness but no spasms, deformity, scoliosis, or kyphosis. There were no postural deformities and his gait was steady. Sensory and motor examinations were normal. The examiner diagnosed the Veteran with lumbar strain with mild posterior disc bulge at L4-5. A November 2008 outpatient treatment report reflects that the Veteran sought treatment for back pain that had increased in severity one week earlier. He denied re-injury. A February 2009 VA clinical record reflects complaints of low back pain. A March 2009 chronic pain management consultation report reflects that the Veteran has 14 years of education and was employed as a police officer. He stated that he did not consider himself to be disabled. On physical examination, the Veteran was able to forward flex to 80 degrees and extend back to 20 degrees. Straight leg raising was negative at 45 degrees bilaterally and other neurologic testing was normal. Gait and station were also normal. The examiner ordered a lumbar support for the Veteran to use in his squad car. Additional VA records in 2009 reflect low back complaints, worsened with activity. These records do not include range of motion testing. The Veteran underwent an outpatient examination in January 2010. However, the scope of the examination was somewhat limited in that there are no range of motion findings included. The examiner noted that there was no tenderness over the spines or the paraspinal region and that straight leg raising was negative. In order to warrant a rating in excess of 10 percent, the Veteran's service connected lumbar sprain with degenerative disc disease at L4-L5 must be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (Diagnostic Codes 5235-5242); or incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months (Diagnostic Code 5243). As detailed above, the Veteran underwent VA examinations in May 2005 and December 2006. He also underwent a chronic pain management consultation in March 2009. At no time was his range of motion limited to greater than 30 degrees but not greater than 60 degrees. To the contrary, he was able to forward flex to 90 degrees, with pain at 70 degrees (May 2005); 90 degrees, with pain at 75 degrees (December 2006); and 80 degrees (March 2009). The December 2006 examiner found that there was no additional limitation due to weakness, lack of endurance, incoordination, or fatigability following repetitive motion. There is no medical evidence to show that there is any additional loss of motion of the lumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. Additionally, the evidence fails to reflect that the Veteran's lumbar sprain with degenerative disc disease at L4-L5 was manifested by muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged rating in excess of 10 percent for a service connected lumbar sprain with degenerative disc disease at L4-L5, prior to December 14, 2010 must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Effective December 14, 2010 Effective December 14, 2010, the Veteran's service connected lumbar sprain with degenerative disc disease at L4-L5 has been rated at 20 percent. The 20 percent rating was based on the findings in the December 2010 VA examination. At that time, the Veteran complained of constant pain in the mid lumbar area, which was increased with any "strenuous activity" (including lifting a full gallon of milk, or approximately 8 pounds). He stated that the pain did not radiate. He had a back brace but could not remember the last time he used it or how often he used it. He did not use a cane. He took two hydrocodone per day, naproxen, and cyclobenzaprine. He also used a TENS unit two hours per day. He estimated that he could walk approximately one mile. He had increased back pain if he stood for more than two hours or sat longer than 45 minutes. He was able to drive, but he had to stop every 45-50 minutes to stretch. He reported that he could not do any housekeeping chores at all. He was unemployed because he could not pass a physical fitness test involving weight lifting and running that was required for his job as a police officer. He had not found a physician that would give him a release to return to work. He last worked part time in October 2010 at a race track. That job consisted of sitting in a squad car and checking identification. He had not worked full time since 2008. Upon examination, the Veteran appeared to be in no obvious distress. He walked normally with no limp. He could ambulate normally on his heels and toes evidencing good balance and muscle coordination and strength. He could squat to 130 degrees bilateral knee flexion and his tandem gait was normal, evidencing good balance. His stature was erect. There was no scoliosis, no loss of lumbar lordosis, no muscle spasm, and the pelvis was level. Range of motion of the lumbar spine (done repetitively) was 60 degrees of flexion, 20 degrees of extension, 25 degrees of right and left lateral bend, and 30 degrees of right and left rotation. All motion was the same after the final range of motion test, and the Veteran did not voice any complaints of pain, fatigability, weakness, lack of endurance or incoordination. There was no lumbar tenderness. His sitting posture was normal. Deep tendon reflexes were 2/4 bilaterally with no pathologic reflexes, and intact sensation. The examiner diagnosed the Veteran with a chronic lumbar sprain with degenerative disc disease L4-5. The examiner noted the Veteran's contention that he could not pass the physical examination to be a full time police officer. The examiner opined that the Veteran would be able, based on his history and physical examination, to perform other types of work. In order to warrant a rating in excess of 20 percent, the Veteran's service connected lumbar sprain with degenerative disc disease at L4-L5 must be manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (Diagnostic Codes 5235-5242); or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months (Diagnostic Code 5243). At the Veteran's December 2010 VA examination, he achieved forward flexion to 60 degrees. No other evidence of record reflects more limited lumbar flexion. Moreover, there was no indication at the VA examination or in the outpatient treatment reports that he suffered incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Consequently, a rating in excess of 20 percent is not warranted under Diagnostic Codes 5235-5242. With respect to DeLuca criteria, the December 2010 VA examiner specifically stated that after repetitive motion, the Veteran's range of motion was the same; and the Veteran did not voice any complaints of pain, fatigability, weakness, lack of endurance or incoordination. There is no medical evidence to show that there is any additional loss of motion of the lumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination to a degree that supports a rating in excess of 20 percent. As will be further explained below, the potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's limited range of motion, pain, and other symptoms of functional impact squarely match the type and degree of the examples set forth under the criteria for the current 10 and 20 percent schedular ratings. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is service-connected for a chronic lumbar sprain with degenerative disc disease L4-5, evaluated as 20 percent disabling. There are no other service-connected disabilities. Thus, he does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). However, the Board must still determine whether the service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disability. A March 2009 chronic pain management report reflects that the Veteran has 14 years of education. At his December 2010 VA examination, he stated that he was employed part time through 2010 at a race track where he could sit in a squad car and check identification. He ceased working there because the race track closed. The Veteran's education level and his apparent ability to perform sedentary work indicate that he is capable of obtaining some form of substantially gainful employment. Furthermore, the December 2010 VA examiner specifically opined that although he may not be able to return to work as a full time police officer, he would be able to perform other types of work. The Veteran has submitted no evidence to support the contention that he could not perform sedentary work. There is no persuasive evidence of record demonstrating or suggesting that the Veteran is unemployable as a result of his service-connected disability. Accordingly, referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is not for application here. (CONTINUED ON NEXT PAGE) ORDER Entitlement to increased ratings for a service connected lumbar sprain with degenerative disc disease at L4-L5 is denied. Entitlement to a TDIU is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs