Citation Nr: 1806196 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-10 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for mechanical low back pain, with osteophytic formation, rated as 10 percent disabling prior to June 16, 2016 and as 20 percent disabling thereafter. 2. Entitlement to a compensable rating for a healed fracture of the left tibia and fibula. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from January 1979 to November 1984. These matters come before the Board of Veteran's Appeals (Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the course of the Veteran's appeal, the RO issued a rating decision in June 2016 awarding an increased rating for the Veteran's mechanical low back pain, with osteophytic formation, minimal, effective on June 16, 2016. Also in the June 2016 rating decision, the RO awarded service connection for osteomyelitis, chronic, left leg, as secondary to the service connected healed fracture of the left tibia and fibula. The issue of osteomyelitis is not presently on appeal. As higher ratings for the disabilities are available prior to and from these dates, the appeal continues. See 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 claims have been characterized accordingly on the title page. In September 2016, the RO notified the Veteran that his hearing was scheduled for November 2016. Although the hearing notice was not returned as undeliverable, the Veteran failed to report. As such, the Board considers the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (e). In February 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to June 16, 2016, even when considering his complaints of pain, pain on motion, functional impairment, and flare ups, the Veteran's service-connected mechanical low back pain was manifested by no less than 60 degrees of forward flexion and combined range of motion of no less than 120 degrees, or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertical body fracture with loss of 50 percent or more height. 2. As of June 16, 2016, even when considering his complaints of pain, pain on motion, functional impairment, and flare ups, the Veteran's service-connected mechanical low back pain was manifested by no less than 30 degrees of forward flexion and combined range of motion of no less than 120 degrees, with incapacitating episodes lasting less than 2 weeks in the prior 12 months, no radiculopathy, no other associated neurological abnormalities, or ankylosis. 3. The Veteran's service-connected healed fracture of the left tibia and fibula has been manifested by no more than malunion of the tibia with a slight knee impairment. 4. The Veteran does not meet the schedular criteria for a TDIU. 5. The Veteran's service-connected disabilities do not render him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 16, 2016, the criteria for a disability rating in excess of 10 percent for mechanical low back pain, with osteophytic formation, have not been met. 38 U.S.C. §§ 1155 , 5107 (2012); 38 C.F.R. § 4.71a , Diagnostic Code 5237 (2017). 2. As of June 16, 2016, the criteria for a disability rating in excess of 20 percent for mechanical low back pain, with osteophytic formation, have not been met. 38 U.S.C. §§ 1155 , 5107 (2012); 38 C.F.R. § 4.71a , Diagnostic Code 5237 (2017). 3. Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 10 percent rating, but not higher, for the service-connected residuals of a fractured left tibia and fibula. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5262 (2017). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran has already been awarded staged ratings for the disabilities on appeal. Accordingly, the Board will consider the propriety of the rating at each stage. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Additionally, in Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Consideration of a higher evaluation for functional loss, to include during flare-ups, due to these factors accordingly is warranted for diagnostic codes predicated on the veteran's limitation of motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. A. Mechanical Low Back Pain Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5243 is rated under either the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the highest evaluation when all disabilities are combined. The Veteran has been assigned a 10 percent evaluation under Diagnostic Code 5237 prior to June 16, 2016 and 20 percent thereafter. Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motions 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 vertical body fracture with loss of 50 percent or more height. A 20 percent evaluation 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. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a , Diagnostic Codes 5235 to 5243, Note (1). 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. 38 C.F.R. § 4.71a , Diagnostic Codes 5235 to 5243, Note (2). Under the Formula for Rating IVDS, a 10 percent evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is assigned for IVDS 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 evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5243. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a , Diagnostic Code 5243, Note (1). The Veteran contends that he is entitled to a rating in excess of 10 percent prior to June 16, 2016, and in excess of 20 percent after June 16, 2016, for his back disability, because the current assigned rating does not adequately represent the severity of his condition. On VA examination in March 2009, the examiner observed that the Veteran's forward flexion was to 80 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 45 degrees, and right lateral rotation to 45 degrees. Three repetitions of range of motion testing resulted in some increase in pain. The examiner also noted some fatigue, weakness, lack of endurance, and incoordination. Per DeLuca, the examiner noted no discomfort of difficulty with range of motion testing. There was no edema, effusion, tenderness, palpable deformity, weakness, fatigue, or instability except as were noted. The examiner stated additional limitations due to flare ups could not be determined without resorting to mere speculation. No neurological defects were noted. The examiner diagnosed the Veteran with lumbar spine degenerative disc and degenerative joint disease without radiculopathy. The Veteran underwent a VA examination in June 2016 for his back condition. The examiner observed that the Veteran's forward flexion was to 50 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees. The examiner noted the ranges of motion were affected by both personal effort and his non-service-connected right above the knee amputation with prosthesis, which causes poor balance when standing and ambulating, and contributes to back pain. The examiner noted there was a painful range of motion with all of the measured movements. The examiner indicated the Veteran was able to perform repetitive movements and had no functional loss after three repetitions, nor any pain, weakness, fatigability, or incoordination which significantly limit functional ability with repeated use over time. During the June 2016 examination, the Veteran stated he had flare-ups with any movement. The examiner stated she was unable to determine without mere speculation the pain, weakness, fatigueability, or incoordination resulting from flare-ups. The examiner noted no ankylosis, other neurological abnormalities, or invertebral disc syndrome (IVDS). The examiner concluded the service connected disability remained unchanged since the previous VA examination in March 2009. In May 2017, a VA examiner provided an opinion after a review of the available records. In regards to Correia, the examiner noted the passive range of motion (PROM) testing could not be perform without risk of injury or perceived injury. Further, the examiner stated that there is no weight bearing medico-legal standard available for the spine at this time. Additionally, the examiner clarified that the June 2016 C&P Examiner report does not clearly constitute a flare-up, but that of a baseline functional limitation. The examiner opined that there is no supporting objective medical record documentation of diagnosis, management, or treatment for flare ups of back pain. Further, the examiner stated that it was not possible to ascertain the degree of functional limitation attributable to each condition without resorting to mere speculation, because the Veteran has other unrelated non-service connected conditions affecting difficulty walking and climbing steps. Based on the above, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's back disability, prior to June 16, 2016. Here, the evidence of record is absent of any findings or notations that forward flexion is to 60 degrees or less, the combined range of motion of the thoracolumbar spine is 120 degrees or less, or that the Veteran suffers muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spine contour, such as scoliosis, reversed lordosis, or abnormal kyphosis, as required for the next higher rating. Instead, prior to June 2016, the Veteran's forward flexion of the thoracolumbar spine has been limited to at worst 80 degrees. Combined range of motion was 260 degrees. Additionally, the March 2009 VA examination specifically found that the Veteran did not have abnormal gait or abnormal spinal contour as a result of his mechanical low back pain. As of June 16, 2016, the Board finds that a rating in excess of 20 percent is not warranted. The evidence of record is absent of any findings or notations that forward flexion is to 30 degrees or less, or any unfavorable ankylosis of the entire thoracolumbar spine, as required for the next higher rating. Since June 2016, the Veteran's forward flexion of the thoracolumbar spine has been limited to at worst 50 degrees, and the combined range of motion was 110 degrees. Additionally, the June 2016 VA examination found the Veteran did not have any ankylosis. The Board acknowledges the lay reports of the Veteran's symptoms, to include pain, decreased motion, and problems walking. The Board has also taken into consideration the provisions under Deluca. The Board notes that the Veteran has functional impairment on repeated use due to pain, loss of motion, fatigue and weakness. However, the Board finds that the Veteran's symptoms and functional limitations do not more closely approximate the criteria for the next higher rating. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board has also considered whether the Veteran is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran did not report any incapacitating episodes as a result of his back pain during his VA treatment visits and his VA examinations. In addition, the VA examiners did not observe any signs of intervertebral disc syndrome. Therefore, a higher rating for IVDS is not warranted by the record. The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. In this regard, the Veteran's medical record does not support other related abnormalities have been found. Therefore, further consideration of separate ratings is not warranted. In reaching these conclusions the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Healed Fractures of the Tibia and Fibula Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability. A 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. On VA examination in March 2009, the examiner noted evidence of a healed fracture on the lower third of the left tibia with a palpable deformity noted. There was no swelling, redness, or other evidence of any infection. The examiner observed that the Veteran was able to bear weight without difficulty. Per DeLuca, the examiner noted no discomfort or difficulty with range of motion testing. The Veteran reported he experienced some aching pain at the site, but there was no evidence of drainage or instability. The Veteran complained of flare-ups producing aching pain in the bone two or three times a year, which were precipitated by prolonged walking or standing and alleviated with rest. On VA examination in June 2016, the examiner found the Veteran's healed fracture of the left tibia and fibula resulted in a mild functional limitation and showed evidence of chronic osteomyelitis by X-ray of the distal shaft of the left leg. The examiner noted no flare ups of the knee or lower leg, and there was no functional loss or functional impairment of the extremity including but not limited to repeated use over time. The examiner noted knee pain with flexion, tenderness on medial and lateral joint line, tenderness on palpation site of the tibia/fibula fracture, and noted a slight deformity. The examiner noted the Veteran wears a left knee brace for pain. In May 2017, a VA examiner provided an opinion after a review of the available medical records. The examiner opined the limitation of the left knee and muscle strength reduction noted by the June 2016 examiner is primarily caused by the unrelated non-service connected left knee degenerative joint disease and meniscectomy. The examiner provided further rationale that the 1984 left tibia/fibula X-ray showed a distal fibula fracture, which does not affect the left knee joint, which is anatomically proximally located. Further, the examiner opined the range of motion testing performed in both March 2009 and June 2016 showed the functional impact of the Veteran's left leg is due to a combination of service connected and non-service connected conditions including the healed fracture of the tibia and fibula, non-service connected left knee degenerative joint disease and meniscectomy, and the non-service connected right above the knee amputation with prosthesis. The examiner further noted that Correia testing could not be performed without risk of injury or perceived injury. Additionally, the examiner stated that the Veteran's non-service connected conditions including the right above the knee amputation with prosthesis, left knee degenerative joint disease and meniscectomy, and vascular insufficiency of the bilateral lower extremities, would further compromise the Correia testing results. Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds throughout the appellate period the Veteran's healed fracture in the tibia and fibula has manifested evidence of a malunion with at least a slight knee or ankle disability. Private treatment records have consistently noted unsteady gait and pain with persistent standing. While the Board notes the Veteran's non-service connected impairments significantly impact his left leg's functional capacity, reasonable doubt indicates the residuals of the left tibia/fibula fracture reasonably contribute to at least a slight impairment of functioning. Accordingly, a 10 percent disability rating is warranted. However, the Board finds that a rating in excess of 10 percent for a healed fracture of the tibia and fibula is not warranted. In this regard, there is no evidence of malunion resulting in a moderate knee or ankle disability as a result of the service-connected impairment. Further, the Board notes the June 2016 rating decision awarded the Veteran with a 20 percent disability rating under Diagnostic Code 5000 for osteomyelitis, secondary to the healed fracture of the tibia and fibula. Thereby, any additional limitation as a result of the healed fracture has already been compensated for via the granted secondary service connection claim. II. TDIU VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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). Consideration may be given to the Veteran's education, special training, and previous work experience, 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; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354. The record reflects that the Veteran is currently service connected for osteomyelitis, chronic, left leg associated with healed fracture of the left tibia and fibula (rated as 20 percent disabling), mechanical low back pain, with osteophytic formation (rated as 10 percent disabling from September 24, 2003 and as 20 percent disabling from June 16, 2016), a healed fracture of the left tibia and fibula (rated as 10 percent disabling), and apparent respiratory insufficiency, mild (rated as noncompensable). A combined rating of 20 percent has been in effect prior to June 16, 2016, and a 40 percent combined rating has been in effect thereafter. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). As such, the claim of entitlement to TDIU on a schedular basis must be denied. The Board has considered whether referral for consideration of TDIU on an extraschedular basis is warranted. See 38 C.F.R. § 4.16(b) (2016). However, the competent evidence of record does not indicate that the Veteran is unemployable due solely to his service-connected disabilities. First, the Board must determine whether the Veteran is actually unemployed. The Veteran's statements in March 2009 and April 2012 indicate that the Veteran has not been working throughout the appellate period. The Veteran has not provided a VA Form 21-8940 Application for a TDIU, nor has he provided any additional detail regarding his work history and educational background. In a March 2009 statement, the Veteran stated he cannot work much due to pain, which sometimes results in an inability to get out of bed. The Veteran stated his pain in his back, knee, and hip prevent him from performing any activities. In an April 2012 statement, the Veteran stated that the loss of his non-service connected right leg has impacted his back and left leg resulting in an inability to stand for prolonged periods and pain in his back and left leg. Further, the Veteran stated his back pain would result in needing two to three days to recover after any kind of activity. On VA examination in June 2016, the examiner found the Veteran's mechanical low back pain would result in pain with prolonged bending, standing and walking. The examiner also noted the Veteran stated that he has to lean forward when sitting down to due back pain, and reported difficulty walking up and down five steps in his garage. Upon a file review in May 2017, a VA examiner opined that in relation to the Veteran's service connected mechanical low back pain and healed fracture of the left tibia and fibula, the Veteran is able to perform light physical activity or sedentary desk work if he so chooses. The Board finds that the symptomatology associated with the service-connected disabilities is appropriately compensated by the currently assigned ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings, and a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See 38 C.F.R. §§ 3.321(a), 4.1 (2016). Indeed, 38 C.F.R. § 4.1 specifically states the following: "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Having reviewed the record, the Board finds no evidence suggesting that the Veteran's case is outside the norm, and requiring of extraschedular consideration. None of the examiners has described total occupational impairment, and the weight of the clinical evidence does not support his contentions that his service-connected mechanical low back pain and healed fracture of the tibia and fibula are of such severity so as to preclude his participation in any form of substantially gainful employment. Nor does the record support a finding that a combination of all of his service-connected disabilities prohibit substantially gainful employment. Thus, the Board sees no basis for referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration. The Board acknowledges and appreciates the Veteran's years of honorable service to this country, and this decision denying a TDIU is in no way meant to diminish that service. Unfortunately, however, as the preponderance of the evidence is against the claim, the claim cannot be granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for mechanical low back pain, with osteophytic formation prior to June 16, 2016 is denied. Entitlement to a rating in excess of 20 percent for mechanical low back pain, with osteophytic formation beginning June 16, 2016 is denied. Entitlement to a 10 percent disability rating, but no higher, for a healed fracture of the tibia and fibula is granted, subject to the laws and regulations governing the payment of VA monetary benefits. Entitlement to a TDIU is denied. ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs