Citation Nr: 1335612 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-25 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain with degenerative disc disease from September 29, 2009. 2. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 2005 to January 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for lumbosacral strain with degenerative disc disease and assigned a noncompensable evaluation effective April 4, 2008. The rating assigned for lumbosacral strain with degenerative disc disease was increased to 10 percent, effective September 29, 2009, in a November 2009 rating decision. Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in March 2011. A transcript is of record. In September 2011, the Board denied an initial compensable rating for lumbosacral strain with degenerative disc disease prior to September 29, 2009. The claims for an initial rating in excess of 10 percent for lumbosacral strain with degenerative disc disease from September 29, 2009, and entitlement to a TDIU were remanded. Those claims were remanded again in January 2013 for additional development. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. As of September 29, 2009, the Veteran's lumbosacral strain with degenerative disc disease has not been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome (IDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. The schedular criteria for consideration of a TDIU are not met, and referral for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbosacral strain with degenerative disc disease as of September 29, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In regards to the claim for an initial rating in excess of 10 percent for lumbosacral strain with degenerative disc disease from September 29, 2009, the Veteran is disagreeing with the rating assigned after service connection has been granted and an initial disability rating and effective date have been assigned. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In regards to the claim for entitlement to a TDIU, notice specific to that claim was sent to the Veteran in an October 2011 letter. The claim was readjudicated in supplemental statements of the case dated August 2012 and May 2013. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include VA treatment records and records from the Social Security Administration, afforded the Veteran appropriate examinations to determine the severity of his disability and to address the question of his employability, and afforded the Veteran the opportunity to give testimony before the Board. VA has also substantially complied with the Board's September 2011 and January 2013 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Increased rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, an evaluation of the extent of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Service connection for lumbosacral strain with degenerative disc disease was granted pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, with a noncompensable evaluation effective April 4, 2008. See October 2008 rating decision. The rating was subsequently increased during the pendency of the appeal to 10 percent effective September 29, 2009. As noted in the Introduction, the Board adjudicated and denied the claim for an initial compensable rating for lumbosacral strain with degenerative disc disease prior to September 29, 2009. See September 2011 Board decision. The question remaining before the Board on appeal is whether the Veteran is entitled to a rating in excess of 10 percent for lumbosacral strain with degenerative disc disease as of September 29, 2009. The Veteran contends that he is entitled to a rating in excess of 10 percent as of September 29, 2009, because his back disability has worsened. He testified in March 2011 that his motion has been affected; that his back feels like it is going numb and occasionally causes him to be unable to get out of bed; that he has problems bending over forwards, backwards, and side to side; that range of motion and movement is affected by pain; that he stopped taking pain medication because it was not effective; that he has to rest his back to get better; and that when the pain sets in he cannot straighten his back. See transcript. Disabilities of the lumbar spine (other than IDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) (2013). In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for 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 an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a (2013). Ratings in excess of 20 percent are provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of entire spine (100 percent). Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). 38 C.F.R. § 4.71a, Note (2) provides 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2013). Under the criteria governing disabilities of the lumbar spine, IDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes. This formula provides a rating of 10 percent for IDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a rating of 20 percent for IDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2013). An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1) (2013). The Veteran underwent a VA spine examination on September 29, 2009, at which time his claims folder was reviewed. He reported that his back pain had worsened and that he experienced daily flares of pain after lifting and prolonged walking, sitting and standing activities. The pain was rated nine in intensity on a scale of 10 and lasted until he lied down. The Veteran denied radiation of pain to his bilateral lower extremity and denied the sensation of tingling and numbness to his bilateral lower extremity. There had been no incapacitating episodes of back pain during the past 12 months. The Veteran reported that he was not taking any medications for pain because they did not help. The examiner noted that the Veteran had been unemployed since May 2009 and that he was able to do activities of daily living and that driving was not impaired. There were no associated features or symptoms such as stiffness, fatigue, spasms, weakness, decreased motion, numbness, paresthesias, leg or foot weakness, bladder or bowel complaints, or erectile dysfunction. The Veteran was able to walk unaided and did not use a brace. He was able to stand for about five to 10 minutes and walk for about one block without lower back pain. The Veteran was not unsteady and did not have a history of falls. He denied any back surgery or hospitalizations. Physical examination during the September 2009 VA examination revealed that posture and gait were normal, as were position of the head and curvature of the spine. Range of motion testing revealed forward flexion to 80 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral rotation to 30 degrees. On repeat testing times three, the Veteran experienced pain on extension from the beginning to end without further reduction of motion. No pain and no further reduction were noted on flexion and the rest of the movements caused pain toward the end without further reduction. There was no functional loss with use due to pain, fatigue, weakness, lack or endurance or incoordination after repetitive motion. No paravertebral muscle spasm was felt and there was no scoliosis, kyphosis or reversed lordosis found, but there was mild tenderness over the lower lumbar spine areas. No postural abnormalities, fixed deformity (ankylosis), or abnormal musculature of the back was noted. Neurological examination during the September 2009 VA examination revealed that touch and pain sensation were normal over the bilateral lower extremity and that all muscle groups of the bilateral lower extremity had normal tone and power. There was no muscle atrophy and muscle power was 5/5. Bilateral knee and ankle reflexes were normal, 2+. Straight leg raise test was negative. There was no IDS noted. The findings of a June 2008 magnetic resonance imaging (MRI) were noted. The diagnosis was degenerative disk disease at L3-L4 and L4-L5 with no radiculopathy clinically and by radiological examination. VA treatment records reveal that the Veteran was issued a TENS unit in December 2009 due to low back pain. See consult request. That same month, he reported chronic low back pain that was worsening. He denied any radiation of the pain. The assessment was multi-level lumbar disc disease with chronic low back pain - worsening. See primary care education note. A June 2010 record associated with the Veteran's SSA records reveals that the Veteran reported back pain but that current physical examination showed negative straight leg raise and no neurological/sensory/muscular deficits, no radicular symptoms, no spasm, and no significant limitation in range of motion. The Veteran ambulated without limitation or assistance. The diagnosis was lumbar strain and degenerative changes on imaging. VA treatment records reveal that the Veteran was seen for chronic low back pain in January 2011. He denied taking any current medication as he felt it did not help much with low back pain, but reported that he was unable to manage the pain without medication. Physical examination revealed that the Veteran appeared to be in some discomfort when lying down and getting up from the exam table, which had its head raised to 45 degrees. The assessment was multi-level lumbar disc disease with chronic low back pain. See id. An August 2011 primary care nursing outpatient note reveals that the Veteran had subjective complaints and an assessment of worsening low back pain. In October 2011, the Veteran reported continued lower back pain. He indicated that it was getting worse and that the TENS unit hurt his back even more. He reported past physical therapy. The Veteran was able to ambulate and stand independently. See nursing initial evaluation note. The Veteran underwent a VA back Disability Benefits Questionnaire (DBQ) in July 2012, pursuant to the Board's September 2011 remand. His claims folder was reviewed. The Veteran was diagnosed with lumbosacral strain with degenerative disc disease and facet syndrome of the lumbar spine. He reported that low back pain comes and goes and he described the pain as a pressure averaging a level seven on a scale of 10. The Veteran denied taking any medication, having any surgery, or using any assistive devices. He reported pain radiating down his right thigh, which also came and went. He described the leg pain as a shooting pain lasting two to three minutes and indicated there was some numbness with it. His back was noted to be aggravated by standing and walking and occasionally by sitting. The Veteran indicated that his lumbar spine was worse because when he bent over it was difficult to straighten. He also reported one prostrating episode last year that lasted one hour, but indicated that no bed rest had ever been recommended. Range of motion testing during the July 2012 VA examination revealed forward flexion to 70 degrees with objective evidence of painful motion beginning at 70 degrees; extension to 10 degrees with objective evidence of painful motion beginning at 10 degrees; bilateral lateral flexion to 15 degrees with objective evidence of painful motion beginning at 15 degrees; and bilateral lateral rotation to 20 degrees with objective evidence of painful motion beginning at 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test range of motion testing revealed forward flexion ending at 70 degrees; extension ending at 10 degrees; bilateral lateral flexion ending at 15 degrees; and bilateral lateral rotation ending at 20 degrees. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The examiner did note functional loss and/or impairment of the thoracolumbar spine after repetitive-use testing in the form of pain on movement. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine and no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal for bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral ankle dorsiflexion, and bilateral great toe extension. There was no muscle atrophy. Reflex examination revealed normal reflexes in both knees and ankles. Sensory examination was normal in the bilateral upper anterior thigh (L2), the bilateral thigh/knee (L3/4), the bilateral lower leg/ankle (L4/L5/S1) and the bilateral foot/toes (L5). Straight leg raising test was negative on both sides. The examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There were also no other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems/pathologic reflexes. The Veteran did not have IDS and did not use any assistive devices. The examiner noted that imaging studies revealed arthritis, but no vertebral fracture or other significant diagnostic findings. VA treatment records reveal that the Veteran was seen in July 2012, after the back DBQ, with primary concerns related to chronic and progressive low back pain. Physical examination revealed that gait was stable. The assessment was degenerative disc disease of the lumbar spine. See primary care E&M note. The preponderance of the evidence of record does not support the assignment of a rating in excess of 10 percent for lumbosacral strain with degenerative disc disease as of September 29, 2009. This is so because the Veteran did not exhibit forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees at any time as of that date. Rather, at worst, forward flexion of the thoracolumbar spine was limited to 70 degrees. See July 2012 VA back DBQ; see also Plate V, 38 C.F.R. § 4.71a (2013). There is also no evidence that the Veteran exhibited a combined range of motion of the thoracolumbar spine not greater than 120 degrees. Rather, he exhibited a combined range of motion of 210 degrees during the September 2009 VA examination and of 150 degrees during the July 2012 DBQ. In addition to the foregoing, although there was objective evidence of mild tenderness over the lower lumbar spine area during the September 2009 VA examination, this tenderness was not noted during the July 2012 back Disability Benefits Questionnaire (DBQ). Moreover, there was no objective evidence at any time since September 29, 2009, of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, the Veteran's gait and posture were reported as normal during the September 2009 VA examination and his gait was noted to be stable during the July 2012 back DBQ. In addition, the September 2009 VA examiner specifically noted the absence of scoliosis, kyphosis, reversed lordosis, postural abnormality, and abnormal musculature and the July 2012 VA examiner noted that imaging studies did not show any vertebral fracture or other significant finding. For all these reasons, the assignment of a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for lumbosacral strain with degenerative disc disease as of September 29, 2009. There is also no evidence of incapacitating episodes of IDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months so as to support the assignment of a 20 percent rating under the Formula for Rating IDS Based on Incapacitating Episodes. As an initial matter, both the September 2009 and July 2012 VA examiners specifically noted the absence of IDS. In addition, while the Board acknowledges the Veteran's report of one prostrating episode lasting an hour in the year prior to the July 2012 back Disability Benefits Questionnaire (DBQ), he denied having been recommended bed rest, and none of the treatment records reveal that bed rest has ever been prescribed. See VA treatment records; SSA records; see also September 2009 VA examination report. Consideration has been given to any functional impairment and any effects of pain on functional abilities. The Board acknowledges that there was objective evidence of pain during repetitive extension at the time of the September 2009 VA examination, as well as objective evidence of painful motion at the end stages of all ranges of motion during the July 2012 back DBQ. The Board also acknowledges that the July 2012 VA examiner noted functional loss/impairment due to pain on movement. Even if range of motion was limited by pain beyond that shown during the September 2009 and July 2012 examinations, however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case it does not. More specifically, there was no evidence of decreased range of motion with repetitive range of motion testing of the thoracolumbar spine during either examination and the July 2012 VA examiner specifically reported that the Veteran was still able to achieve 70 degrees of post-test forward flexion. In addition, there was no evidence of fatigue, weakness, incoordination, or lack of endurance on repetitive use at the time of either the September 2009 or July 2012 examinations. In light of the foregoing, the Board finds that a rating in excess of 10 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca. This is so because even taking into account the findings of pain at 70 degrees of forward flexion during the July 2012 VA back DBQ, the Veteran was still able to forward flex to 70 degrees after repetitive range of motion testing, which is 40 degrees away from the amount needed to support a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). The Board has also considered whether the Veteran manifests any associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The Veteran has consistently denied any bowel or bladder impairment. The Board acknowledges that the Veteran reported pain radiating down his right thigh, which came and went and was described as a shooting pain with some numbness lasting two to three minutes, at the time of the July 2012 back DBQ. Prior to this, he consistently denied any radiation of pain or sensation of tingling and/or numbness into his lower extremities, and he also denied radicular symptoms. See September 2009 VA examination report; December 2009 primary care education note; June 2010 SSA record. Despite the complaints made during the July 2012 VA examination, the preponderance of the evidence does not support a finding that the Veteran has a neurological abnormality affecting either lower extremity. More specifically, the July 2012 VA examiner reported that muscle strength testing was normal and there was no muscle atrophy, that reflex and sensory examination revealed normal reflexes and sensation in the bilateral lower extremity, that straight leg raising test was negative on both sides, and, most importantly, that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In the absence of any medical evidence of a diagnosis related to neurological abnormality associated with the Veteran's service-connected lumbosacral strain with degenerative disc disease, the evidence of record does not support the assignment of a separate rating as of September 29, 2009. Extraschedular consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected lumbar spine disability picture is not so unusual or exceptional in nature as to render the 10 percent rating assigned as of September 29, 2009, inadequate at any time during the period on appeal. The Veteran's service-connected lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology. 38 C.F.R. § 4.71a. The Veteran's lumbar spine disability is manifested by subjective and objective evidence of pain and limited motion. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 10 percent disability rating assigned as of September 29, 2009. Ratings in excess of 10 percent are provided for certain manifestations of a lumbar spine disability, but the medical evidence of record did not demonstrate that such manifestations were present in this case. The criteria for the 10 percent disability rating assigned as of September 29, 2009, more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In this case, lumbosacral strain with degenerative disc disease is the sole service-connected disability. In this decision, the Board has denied a rating in excess of 10 percent for lumbosacral strain with degenerative disc disease from September 29, 2009. It previously denied a compensable rating for lumbosacral strain with degenerative disc disease prior to September 29, 2009. Given the foregoing, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have not been met at any time since the inception of the Veteran's claim for increased rating. The Board must consider the provisions of 38 C.F.R. § 4.16(b), however, which provides for referral of cases for extraschedular consideration if a Veteran is unemployable by reason of service-connected disability, but does not meet the schedular requirements for consideration under 38 C.F.R. § 4.16(a) (2013). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). As noted above, the Board has determined that the criteria for the 10 percent disability rating assigned for lumbosacral strain with degenerative disc disease from September 29, 2009, more than reasonably describe the Veteran's disability level and symptomatology such that no extraschedular referral pursuant to 38 C.F.R. § 3.321(b) is required. The Board also finds that the Veteran has not satisfied the requirements for extraschedular referral under 38 C.F.R. § 4.16(b). Although the Veteran has consistently reported that he has been unemployed since May 2009 as a result of his back disability interfering with his work, and the examiner who conducted the July 2012 back DBQ reported that the Veteran's thoracolumbar condition impacted his ability to work, the examiner made clear that the limitations on employment, namely manual, walking, and standing long periods, would not affect sedentary employment. See VA treatment records; VA examination reports dated September 2009 and July 2012; SSA records; March 2011 hearing transcript; see also July 2012 general medical DBQ (there are no general medical issues which hinder him from working; last worked May 2009; worked as a security guard and his back was giving him problems; also the medications he was taking made him drowsy and he was let go);August 2012 addendum (his lumbar spine condition is as likely as not the main issue which hinders him from doing manual work, but less likely as not sedentary work). Given that the Veteran has been deemed capable of performing the physical and mental acts required by sedentary employment, extraschedular referral under 38 C.F.R. § 4.16(b) is not warranted. ORDER A rating in excess of 10 percent for lumbosacral strain with degenerative disc disease from September 29, 2009, is denied. Entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs