Citation Nr: 18151120 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 11-07 899 DATE: November 16, 2018 ORDER Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease (djd) of the thoracolumbar spine is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s djd of the thoracolumbar spine is not manifested by a range of motion limited to 30 degrees or less, or by ankylosis, or by incapacitating episodes. 2. The Veteran’s service-connected disability does not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for djd of the thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5237, 5243 (2018). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to April 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board remanded these claims for further development, to include the scheduling of a VA examination for the Veteran’s thoracolumbar spine disability. The Board finds that there has been substantial compliance with the previous remand. See Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board notes that, in May 2012 and in December 2012, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) for private medical records. In November 2015, the RO sent two letters to the Veteran, at the address of record at the time, notifying him that the VA Form 21-4142 had expired and that they needed a new one. The Board notes that a VA Form 21-22a, Power of Attorney received in October 2015 indicates a different address for the Veteran; however, the record does not include any change of address forms. While the Board acknowledges that one of the notification letters was returned in the mail on November 27, 2015, the Board notes that the Veteran’s representative was copied on the notification letters, and there is no indication that notice was not received by the representative. Furthermore, there is no indication that the letters were sent to an address other than the address of record at the time they were mailed. Therefore, the Board finds that there are currently no deficits involving the duty to assist or to notify the Veteran. 1. Disability rating for degenerative joint disease of the thoracolumbar spine The Veteran contends that his djd of the thoracolumbar spine warrants a rating in excess of the 20 percent rating currently assigned. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2017). When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and when those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s djd of the thoracolumbar spine is currently rated under Diagnostic Code (DC) 5237. The disability was assigned a noncompensable rating from January 17, 1974, and a 20 percent evaluation from June 28, 2010. The back disability may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (DC 5235 through 5242) or under the Formula for Rating intervertebral disc syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever results in the higher evaluation. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. DC 5237 utilizes the General Rating Formula for Diseases and Injuries of the Spine. The General Formula provides that an evaluation of 20 percent rating is warranted for 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; 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 for the thoracolumbar spine is 240 degrees. Id. at Note (2). Alternatively, the Veteran’s back disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which assigns a 20 percent evaluation 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 may be assigned 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 may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS Based on Incapacitating Episodes (2017). An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). The General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). In this matter, the evidence consists of lay statements from the Veteran, VA examination reports, and private medical reports. In determining whether an increased rating is warranted here, the Board will consider evidence dated since June 28, 2009, which is one year prior to the claim for increased rating subject to this appeal. See 38 C.F.R. § 3.400(o)(2). A September 2010 private examination of the back indicates that the Veteran suffers from flare-ups from his chronic low back strain. The report indicates forward flexion to 60 degrees, pain with extension, and no ankylosis of the thoracolumbar spine. The Veteran underwent a VA examination in December 2015 for back conditions. The report indicates that the Veteran does not report flare-ups but reported functional loss or impairment due to his back condition, indicating pain all the time. Range of motion testing indicates forward flexion to 75 degrees, and the report indicates no ankylosis of the spine. The report indicates pain on examination but that it does not result in or cause functional loss. The report indicates that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time, and sensory examination results were normal. The report indicates that the Veteran does not have radicular pain, any other signs or symptoms due to radiculopathy, any other neurologic abnormalities or IVDS of the thoracolumbar spine. In a September 2017 disability benefits questionnaire (DBQ) for back conditions completed by Dr. G.S., a private physician, he indicates that the Veteran has advanced degenerative disc disease (ddd), left weakness, and radiculopathy. The DBQ indicates persistent back pain. The examiner stated that he was not able to perform initial range of motion testing of the back, but the report indicates that abnormal range of motion measurements contribute to functional loss, stating that range of motion was decreased in all directions to 10 percent. The report indicates that range of motion movements are painful on active, passive, and/or repetitive use testing as well as in weight and non-weight bearing. The report indicates that pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, noting forward flexion, extension, right lateral flexion, left lateral flexion, right lateral flexion, and left lateral rotation all to 10 percent. The report indicates that sensory examination results were normal and that straight leg raising test results were positive. The report indicates that the Veteran has radicular pain or any other subjective symptoms due to radiculopathy, and that the Veteran has constant pain, at times excruciating but that paresthesias, dysesthesias and numbness are absent. The report indicates moderate severity of radiculopathy of the right and left lower extremities. The examiner indicated that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The report indicates that the Veteran has IVDS and that the Veteran has had incapacitating episodes lasting at least 6 weeks over the past 12 months. As will be discussed in more detail below, the Board affords this examination minimal probative value. The Veteran underwent a VA examination for his back condition in January 2018. The report indicates that the Veteran has pain in the back but not all the time. The report indicates no pain radiation, and no numbness or tingling in the back or up or down from the back. The Veteran reported functional loss or impairment of the thoracolumbar spine and flare-ups, three or four times a week, lasting an hour to three or four, and rated them a 9 out of 10. The report indicates that if the Veteran does a lot of bending or walking his back will flare, but that he picks up sticks and plants things in the yard. Range of motion testing indicates forward flexion to 75 degrees. The report indicates pain noted on examination but does not result in or cause functional loss, and there is no evidence of pain with weight bearing. The report indicates that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, specifying pain and fatigue. Sensory examination results were normal and straight leg raising was negative. The report indicates that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy. The report indicates that there is no ankylosis of the spine. The Veteran does not have IVDS or any other neurologic abnormalities or findings related to a thoracolumbar spine condition. As will be discussed in more detail below, the Board affords this examination high probative value. In a February 2018 DBQ, the examiner noted persistent back pain and that range of motion testing of the back could not be performed, but then noted that range of motion decreased in all directions to 10 percent. The report indicates pain on active, passive, weight bearing, and/or non-weight bearing. The report indicates less movement than normal, excess fatigability, pain on movement, interference with sitting and standing. All range of motion testing was shown as 10 percent. The report indicates unfavorable ankylosis of the entire thoracolumbar spine. Sensory examination results were normal, straight leg raising test was positive, and paresthesias, dysesthesias, and numbness were absent. The report indicates that the Veteran has radicular pain or any other subjective symptoms due to radiculopathy, noting severe constant pain was present in the right and left lower extremities. The examiner noted that the Veteran has objective findings due to radiculopathy not addressed in the physical examination section, but does not describe his findings. The report indicates severe radiculopathy on the right and left lower extremities and indicated involvement of L4/L5/S1/S2/S3 nerve roots on both the right and left. The examiner noted that the Veteran does not have any other objective neurologic abnormalities or findings associated with a back condition. The report indicates that the Veteran has IVDS of the thoracolumbar spine and has had incapacitating episodes lasting at least 6 weeks over the past 12 months. As will be discussed in more detail below, the Board affords this examination minimal probative value. In a September 2018 DBQ for back conditions completed by Dr. G.S., he indicates that the Veteran has advanced stage 3 ddd and radiculopathy. The DBQ indicates persistent back pain. The examiner stated that he was not able to perform initial range of motion testing of the back, but the report indicates that abnormal range of motion measurements contribute to functional loss, stating that range of motion was decreased in all directions to 65 percent. The report indicates that range of motion movements are painful on active, passive, and/or repetitive use testing as well as in weight and non-weight bearing. The report indicates that pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, noting forward flexion, extension, right lateral flexion, left lateral flexion, right lateral flexion, and left lateral rotation all to 30 percent. The report indicates that sensory examination results were normal and that straight leg raising test results were positive. The report indicates that the Veteran has radicular pain or any other subjective symptoms due to radiculopathy, and that the Veteran has constant pain, at times excruciating, noted as severe, of the right and left lower extremities, but that paresthesias, dysesthesias and numbness are absent. The examiner indicated that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The report indicates that the Veteran has IVDS and that the Veteran has had incapacitating episodes lasting at least 6 weeks over the past 12 months. As will be discussed in more detail below, the Board affords this examination minimal probative value. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). Additionally, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the September 2017, February 2018, and September 2018 DBQs – each completed by Dr. G.S. – to be of low probative value. The Board acknowledges that the examiner indicated testing on weight bearing and non-weight bearing as well as on both active and passive motion. However, the examiner indicated range of motion findings in terms of percentages, instead of in terms of degrees, as required under DC 5237. The examiner indicated that the Veteran had ankylosis of the back but also indicated some range of motion. The examiner noted that the Veteran exhibited radiculopathy but did not describe his findings. The examiner indicated that the Veteran has IVDS of the thoracolumbar spine and that he has had incapacitating episodes lasting at least 6 weeks over the past 12 months; however, the examiner did not provide any details for this finding, and the record does not provide further support for it. Thus, the Board affords these DBQs minimal probative value. They appear to be no more than an endorsement of severe symptoms without support and are internally contradictory, for example, in the ankylosis finding along with findings of motion. The Board finds the January 2018 VA examiner’s opinion to be the most probative evidence of record as to whether the Veteran’s back disability warrants a rating higher than currently assigned. The examiner addressed testing on both active and passive motion as well as on weight bearing and non-weight bearing. The examiner clearly discussed the Veteran’s range of motion, any associated symptoms of his condition, and his findings based on his examination of the Veteran. Thus, the Board finds this examination adequate and affords it high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A higher rating of 40 percent is not warranted because forward flexion of the thoracolumbar spine is greater than 30 degrees, and there is no probative evidence of ankylosis of the thoracolumbar spine. Accordingly, the Board concludes that a rating in excess of 20 percent for the Veteran’s back disability is not warranted. The Board has considered whether service-connected back disability has resulted in incapacitating episodes and the duration of any such episodes as described under DC 5243. However, the probative evidence of record indicates no evidence of incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s service-connected thoracolumbar spine disability is not warranted based on functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran has reported pain on numerous occasions. The Board further observes that the Veteran has reported experiencing functional limitations, to include interference with sitting and standing. Despite the Veteran’s reports of pain, the VA examinations documented that the range of motion measurements were not changed by considerations of objective evidence of pain or repetitive use testing. Therefore, the Board concludes that an evaluation in excess of 20 percent for the Veteran’s back disability is not warranted. The Board acknowledges the Veteran’s assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence of record does not, however, reflect the degree of functional limitation needed for the next higher rating. The Board finds that the most probative evidence consists of the VA examination reports prepared by trained medical professionals, and such evidence demonstrates that the currently assigned ratings are appropriate. After a review of the pertinent evidence, the Board determines that, from June 28, 2009, a rating higher than 20 percent is not warranted for service-connected back disability. 38 C.F.R. § 3.400(o)(2). Based on the most probative evidence of record, discussed above, the Veteran’s back disability has been manifested by pain, limitation of forward flexion to no less than 60 degrees, and no evidence of ankylosis of the thoracolumbar spine. When these symptoms are applied to the rating criteria, they are consistent with the current 20 percent rating. 38 C.F.R. § 4.71a, DC 5237. The criteria for a higher rating have not been met. Thus, a rating higher than the current 20 percent is not warranted. Therefore, the Board finds that the preponderance of the evidence is against a schedular rating higher than 20 percent for the Veteran’s back condition. Hence the appeal as to a higher rating must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When evaluating the extent of the Veteran’s back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). Here, the most probative evidence of record, specifically the January 2018 VA examination, indicates that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to a thoracolumbar spine condition. As such, separate compensable ratings for associated objective neurologic abnormalities are not warranted. 2. Entitlement to a TDIU The Veteran contends that his service-connected disability prevents him from seeking and maintaining meaningful, gainful employment. A “schedular” TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. In September 2010, the Veteran indicated that service-connected disability renders him unemployable. Throughout the appeal period, the sole service-connected disability is the back disability rated as 20 percent disabling. As such, the threshold requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) is not met here. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16. 38 C.F.R. § 4.16(b). The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining the severity of impairment, 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 level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. After review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran’s service-connected disability do not render him unable to secure and follow a substantially gainful occupation. The evidence of record does not demonstrate that the Veteran’s service-connected disability would preclude him from being able to engage in substantially gainful employment. In a September 2010 statement, the Veteran stated that he is unable to work because of pain. He stated that he was an electrician and repair technician but because of the pain to lift, bend, or carry items, he had to give up working. In another September 2010 statement, the Veteran stated that he cannot perform his normal work duties so he has taken a sales job. He stated that the job pays much less for the job skills for which he was trained for 30 years. In a December 2010 notice of disagreement (NOD), the Veteran stated that he worked as an electrician for 4 years and that his employment ended due to his inability to perform the requirements of the job. He stated that his circumstances have changed due to the worsening of his disabilities and that he is unable to bend over or work on his knees. He stated that he has to sit down to put on his pants or shoes and cannot lift anything over 8 pounds. He stated that the increase in his disabling condition precludes him from working as an electrician. He stated that his back pain and right knee are in such bad condition that he is unable to work or find employment. In a February 2011 statement, the Veteran stated that he cannot work a regular job because he is unable to bend down and pick up anything. He stated that once he gets down he is unable to get back up without holding on to something and the pain is unbearable. In a January 2011 lay statement, the Veteran’s former employer stated that the Veteran worked for him as an electrician for 4 years. He stated that he had to let him go because he was unable to perform the requirements of the job, including bending over or working on his knees, and that if he did a lot of bending or lifting the next day he could not work. He stated that he let the Veteran work as a foreman until the economy took a downturn and his company could no longer support a foreman position. In the March 2011 statement, the Veteran stated that his ability to function normally has deteriorated to a level that is impacting his ability to find employment. He stated that his back and right knee hurt every day and that he cannot work a regular job. He stated that the increase in his disabling condition precludes him from working as an electrician. In the May 2012 application for TDIU, it indicates that the Veteran is prevented from securing or following any substantially gainful occupation because of his back and right knee pain. The application indicates that the Veteran became too disabled to work in June 2009 and that he last worked full-time in October 2010. The Veteran indicated that the most he ever earned in one year was 60,000 dollars in 2004 working in IT/telecommunication. The application indicates that the Veteran did not leave his last job because of his disability. In an employment verification form received in May 2012, the Veteran’s former employer indicated that the Veteran worked full-time as an electrician and had a younger laborer work to assist with lifting and bending. The form indicated that the Veteran worked too slow and could not perform all required duties. A December 2012 TDIU application indicates that the Veteran’s bad lower back and right knee prevent him from securing or following any substantially gainful occupation. The application indicates that the Veteran last worked in June 2009, and that the most he ever earned in one year was 95,000 dollars in 2001 working as a manager of customer service. The application indicates that the Veteran completed 4 years of college and received Cisco CCNA certification and MCSE certification. He remarked that he feels his age and disabilities are preventing him from obtaining employment. A December 2012 employment form indicates that the Veteran performed work as a residential electrician. It indicates that concessions were made for him, including providing more cushion for knees, back brace, and use of his own truck for ease of driving. It indicates that his employment was terminated because he worked too slow, was not able to crawl, bend, or lift equipment. In a January 2013 statement, the Veteran stated that he has not worked since October 2010 due to his physical condition. He stated that he worked from home 80 percent of the time and was unable to walk or drive due to the pain in his back. He stated that he had a laptop computer and used the company internet all the time. In a February 2013 employment information form, the Veteran’s former employer indicated that he worked from February 2010 until October 2010 as an account executive – sales, and his employment was terminated due to work performance. In a February 2013 NOD, the Veteran stated that his ability to function normally has deteriorated to a level that is impacting his ability to find employment. He stated that he cannot work a regular job because of his knee and back. The December 2015 VA examination indicates that the Veteran’s thoracolumbar spine condition impacts his ability to work. The examiner stated that the Veteran is not likely to be able to do some physically demanding type of jobs because of his back condition but is likely to be able to do sedentary type of employments. The September 2017, February 2018, and September 2018 DBQs indicate that the Veteran’s condition impacts his ability to perform any type of occupational task, noting problems standing, lifting, and decreased range of motion. The January 2018 VA examination indicates that the Veteran has to limit sitting to a half hour and cannot stand or walk for more than an hour. The report indicates that the Veteran’s back condition impacts his ability to work, explaining that work requiring heavy lifting and repetitive bending would not be recommended. Sedentary work without prolonged sitting or standing would be possible. The Board finds that, while the Veteran’s service connected disability does have some effect on his employability, the record does not indicate that the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected disability. By the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with his service-connected disability. Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability rating assigned. The evidence does not show that the Veteran is incapable of performing the mental acts required by sedentary employment due solely to his service-connected disability. Based on a review of all of the evidence of record as to the extent of functional loss due to his service-connected disability, the Board finds that the preponderance of evidence shows that the Veteran’s service-connected disability does not render him unable to engage in employment consistent with his work experience and education level. The preponderance of the evidence is against this claim for entitlement to TDIU. Therefore, there is no reasonable doubt to be resolved, and the appeal for this matter must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran’s service connected disability renders him unable to secure or follow a substantially gainful occupation. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Labi, Associate Counsel