Citation Nr: 18151282 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 08-37 725 DATE: November 16, 2018 ORDER Entitlement to a higher initial rating for residuals of injury, T-5 compression fracture to the dorsal spine with degenerative joint disease, rated as 10 percent disabling prior to August 25, 2010 and as 40 percent disabling thereafter, is denied. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to August 25, 2010, the Veteran’s residuals of injury to the T5 compression fracture dorsal spine with degenerative joint disease manifested as forward flexion of the thoracolumbar spine that was limited to greater than 30 degrees but not greater than 60 degrees or combined range of motion of the thoracolumbar spine not greater than 120 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups; muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis; intervertebral disc syndrome with incapacitating episodes; or neurologic impairment. 2. After August 25, 2010, the Veteran’s residuals of injury to the T5 compression fracture dorsal spine with degenerative joint disease was not productive of ankylosis; intervertebral disc syndrome with incapacitating episodes; or neurologic impairment. 3. The Veteran’s service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating in excess of 10 percent prior to August 25, 2010 and in excess of 40 percent for residuals of injury to the T-5 compression fracture, dorsal spine with degenerative joint disease thereafter, have not been met. 38 U.S.C. §§ 1155, 5017 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235 (2017). 2. The requirements for establishing entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to October 1976. He is a Peacetime and Vietnam Era veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 decision by the Regional Office (RO) in North Little Rock Arkansas that granted service connection and a 10 percent rating for residuals of T-5 compression fracture of the dorsal (thoracic) spines with degenerative joint disease (back disability), effective from July 17, 2007. The Veteran appealed for a higher initial rating. An October 2015 rating decision denied entitlement to individual employability. In an August 2010 Board decision, the Board remanded that Veteran’s claim for a VA examination. In an October 2011 rating decision, the RO granted a higher 40 percent rating for the service-connected thoracic spine disability, effective from August 25, 2010, the date of a VA examination. However, as that increase did not represent a total grant of the benefits sought on appeal, the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In an October 2015 rating decision, the RO denied entitlement to a TDIU. The Board, in its July 2016 decision, determined that the issue of entitlement to TDIU had been raised and took jurisdiction over the issue in accordance with Rice v. Shinseki. 22 Vet. App. 447 (2009). In July 2016, the Board remanded the issues of entitlement to a higher initial rating for the service-connected thoracic spine disability and entitlement to a TDIU. The remand instructed the agency of original jurisdiction (AOJ) to obtain a complete copy of the August 2010 VA examination report, obtain relevant VA or private medical records of treatment or evaluation of this condition since September 2010 that were not already on file, to provide the Veteran with a VA spine examination to determine the current severity of this condition, and to address the January 2014 spine examination with addendum from the examiner dated April 2014. In a July 2018 supplemental statement of the case, the RO denied higher rating for the back disability and denied TDIU. Higher initial rating for residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that, in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be 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. 38 C.F.R. § 4.59. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 Effective September 26, 2003, the regulations regarding diseases of and injuries to the spine under Diagnostic Codes 5235-5242 were revised. Under these regulations, a spine disability is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): 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 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). The Board has evaluated the Veteran’s lumbar spine disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran’s ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Appeal Period Prior to August 25, 2010 For historical purposes, the Veteran service connection was granted in a March 2006 rating decision. A 10 percent rating was assigned from July 17, 2007 under Diagnostic Code 5235. 38 C.F.R. §4.71a. The Veteran disagreed with the initial rating assigned, and this appeal ensued. In March 2008, the Veteran underwent VA examination and on physical examination. The examiner noted that the Veteran walked with a normal gait, no spasms or tenderness on palpation of the lumbar spine. Moreover, the range of motion revealed a forward flexion of 90 degrees, posterior flexion of 10 degrees, lateral flexion 20 degrees bilaterally, all with pain noted at extreme range of motion in all directions. The examiner also noted that the motor strength was 5/5 in both the lower extremities; reflexes were diminished, but symmetric. The Board finds that the evidence of record does not support a rating higher than 10 percent at any point during this appeal period. Specifically, at no point during the appeal period has the Veteran’s residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease been characterized by muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. In this regard, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston, supra. In the instant case, the Veteran has complained of frequent mid-dorsal spine pain that requires daily opiates for pain relief. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath, supra. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. However, despite the Veteran’s complaints, pain did not result in limitation of flexion to 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 170 degrees or ankylosis of the lumbar spine, at any time during the period on appeal. The Veteran was still able to demonstrate near-full range of motion during the March 2008 VA examination. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell, supra. 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.; see 38 C.F.R. § 4.40. Although the record reflects that the Veteran’s did experience dorsal spine pain at the extreme range of motions in all directions during the March 2008 VA examination, additional functional impairment such as additional limitation of motion on account of pain was not shown. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran’s residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. The Board notes spinal arthritis was found on X-ray; however, such X-ray evidence of arthritis would not avail the Veteran of a higher rating. Although, as noted above, a 10 percent rating can be assigned for degenerative arthritis of the lumbar vertebrae resulting in either painful motion or non-compensable motion, that is only true when limitation of motion is non-compensable. As the Veteran has been assigned a 10 percent rating for his residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease to compensate his for painful motion, a separate compensable disability cannot be awarded for arthritis. Pursuant to 38 C.F.R. § 4.45(f), the lumbar vertebrae are considered a group of minor joints that is ratable on a parity with a major joint. Appeal Period After August 25, 2010 During this period, the Veteran’s residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease has been assigned a 40 percent rating. To receive an increased rating the evidence must show unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Veteran was afforded a VA examination in August 2010. The examiner noted that the Veterans pain discomfort was 10/10, range of motion and other tests were documented. Physical examination revealed a barely perceptible right thoracic left lumbar curve. Pelvis was level. Leg length was equal. The Veteran bent forward from the vertical with discomfort each time to 50, 30 and 30 degrees respectively. Other range of motion measurements did not diminish with repetition side bending was to 15 with pain bilaterally, rotation was to 30 on the left and 35 on the right without complaints. Extension was 20 degrees with pain. There was palpable spasm and objective evidence of tenderness at the injury site. Moreover, the examiner noted that Veteran’s discomfort had moved from his midback down to his low back, the Veteran stopped working four months ago because of his back pain. On January 2014, the Veteran underwent a VA examination. The examiner noted that the Veteran reported flare ups and the impact was the same as the August 2010 exam. The initial range of motion test revealed 85 forward flexion end, an extension end of 30 or greater; the right lateral flexion ends at 25 degrees, the objective evidence of painful motion is 25 degrees, lateral rotation ends at 20 degrees; the left lateral flexion at 25 degrees, painful motion begins at 25 degrees, the right and left lateral rotation ends at 20 degrees. The Veteran muscle strengths were normal, no muscle atrophy, no ankylosis. The examiner noted that the Veteran estimated 100 percent loss of function due to pain, fatigue, weakness and lack of endurance when the Veteran’s back is used repeatedly or with flare ups with bending, lifting and twisting, and that it takes two hours to get back to functioning. In April 2014 in a VA addendum, the examiner clarified that if there is 100 percent loss of function when the back is used repeatedly or during flare ups, then the range of motion would be 0 degrees in flexion, extension, right and lateral flexion and right and lateral rotation, but stated there was no supporting evidence of this. The Veteran was afforded a VA examination on November 2016. During the exam the examiner noted that veteran experienced flare-ups and functional loss. Initial range of motion test were abnormal, forward flexion was to 60 degrees, extension was to 20 degrees, right and left lateral flexion was to 20 degrees, and right and left lateral rotation was to 30 degrees. The examiner noted that there was no additional loss of function or range of motion after three repetitions. The veteran reported muscle spasms, normal muscle strength, no atrophy, and no ankylosis or neurological abnormalities. It was noted that the Veteran used a brace on an occasional basis and a cane on a regular basis to aid in ambulation. The examiner noted that arthritis was documented on imaging studies of the thoracolumbar spine, that there was a thoracic vertebral fracture with loss of 50 percent or more of height, and also noted that a 2015 x-ray was stable. That Board finds that is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. A November 2016 VA examination found that the Veteran did not suffer from spinal ankylosis and the thoracolumbar spine was consistently found to have range of motion on objective examination. Further, the clinical evidence does not establish, and the Veteran has not alleged, that his thoracolumbar spine was ankylosed or that he experienced such symptoms as difficulty talking due to limited line of vision, difficulty breathing or eating, atlantoaxial or cervical subluxation or dislocation, or nerve root stretching, as is required for unfavorable ankylosis for VA compensation purposes. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In addition, while there is evidence of functional loss due to pain and weakness of the thoracolumbar spine that would otherwise warrant assigning a higher rating, such functional loss does not more nearly approximate unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine, i.e., the symptomatology required for either a 50 percent disability rating or a total rating. 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Mitchell; DeLuca, supra. In this regard, neither the VA examiners nor the clinical records have noted additional limitation with repetitive motion or otherwise described any symptomatology tantamount to unfavorable ankylosis. Under these circumstances, there is no basis for a rating higher than 40 percent in light of the factors set forth in 38 C.F.R. §§ 4.40, 4.45, and 4.59 for the appeal period beginning on August 25, 2010. Other Considerations The Board has also considered whether the Veteran’s service-connected residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease has resulted in intervertebral disc syndrome with incapacitating episodes as described under Diagnostic Code 5243. However, no physician has diagnosed him with IVDS. Moreover, the Veteran has denied incapacitating episodes, and VA examinations and clinical records fail to show any evidence of incapacitating episodes due to his lumbar spine disorder that meet the requirements set forth in Code 5243, i.e., requiring bed rest prescribed by a physician. Therefore, a higher rating is also not assignable under the Formula for Rating IVDS Based on Incapacitating Episodes. In addition to considering the orthopedic manifestations of a spinal disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has neurological, bladder impairment or bowel impairment as a result of his service-connected residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease. The Veteran specifically denied symptoms of radiculopathy in the March 2008 VA examination report. Therefore, the Board finds that, at no time during the appeal period, has the Veteran’s dorsal spine disorder resulted in neurological impairment. Finally, the Board notes the arguments of the Veteran’s representative in its August 2018 Informal Hearing Presentation that November 2016 VA examination was inadequate as it was inconsistent with the narrative in the July 2018 supplemental statement of the case. Specifically, they allege that the November 2016 VA examination found that the Veteran had a thoracic fracture with loss of 50 percent or more of height but that the July 2018 supplemental statement of the case noted that there was no thoracic vertebral fracture with loss of 50 percent or more of height. However, the text of the November 2016 VA examination report does not reveal such purported inconsistency. Moreover, the presence of a vertebral fracture is immaterial to the Veteran’s claim as a higher rating for this appeal period requires the presence of ankylosis. This argument is therefore without merit. The Board has considered whether a further staged rating under Fenderson and Hart, supra, is appropriate for the Veteran’s service-connected residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease; however, the Board finds that his symptomatology has been stable throughout each appeal period. Therefore, assigning a further staged rating for such a disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for a higher rating for his residuals of injury to the T-5 compression fracture to the dorsal spine with degenerative joint disease for the entire appeal period. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the veteran’s background including his or her employment and educational history. See 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the Veteran is currently service-connected for back disability rated as 40 percent. The Veteran does not have a single disability rated as 60 percent or more. Thus, he does not meet the schedular criteria and a TDIU on a schedular basis is not warranted. 38 C.F.R. § 4.16(a). In his TDIU claim, the Veteran reported that he had completed three years of high school, had work experience as a truck driver, and became too disabled to work due to his back disability in 2010. In the January 2014 VA exam, the Veteran reported that “he estimates loss of 100 percent function due to pain fatigue weakness lack of endurance when back is used repeatedly or with flares and that takes approximately two hours to “get back to functioning.” However, in an April 2014 VA addendum the examiner noted that if there is 100 percent loss of function his range of motion at that time would be zero degrees in flexion, extension, right and lateral flexion and right and lateral rotation. There is no supporting evidence. The Director of Compensation Service who issued an advisory opinion in May 2015. This opinion noted that the Veteran has been unemployed as a truck driver since April 2010, however, that none of the medical evidence supports the Veteran’s contention that service-connected disability prevents employment now or in the past. The Director concluded that entitlement to extraschedular TDIU was not established. The Veteran was afforded a VA examination on November 2016. During the exam the examiner noted the Veterans’ condition impacted his ability to do work in that he was limiting in this ability to lift heavy items greater than 15 pounds, prolonged standing or walking. The Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran was precluded from securing or following substantially gainful employment solely by reason of his service-connected residuals of injury T-5 compression fracture to the dorsal spine with degenerative joint disease or that he was incapable of performing the mental and physical acts required by employment due solely to his service-connected residuals of injury, T-5 compression fracture to the dorsal spine with degenerative joint disease, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. The November 2016 VA examiner stated that the Veteran was limited in his ability to lift items greater than 15 pounds as well as his ability to tolerate prolonged standing or walking. However, there is no indication that such limitations would impact his ability to perform his past occupation as a truck driver. In a May 2010 SSA Work History Report, the Veteran reported that he did not walk or stand much and that the heaviest weight he lifted was less than 10 pounds while employed as a truck driver. In reaching the foregoing conclusion, the Board acknowledges the SSA found the Veteran to be totally and permanently disabled (under Social Security Laws and Regulations) due to chronic back pain with degenerative changes, a compression fracture at T5, hypertension, diabetes mellitus type 2 and sensorineural hearing loss. In this regard, the Board is not bound by SSA’s findings. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is “pertinent” to a veteran’s claim). In this regard, while SSA found that the Veteran’s dorsal spine disorder rendered him unemployable, the Board finds that such determination is in direct conflict with the determinations made throughout the appeal period by VA examiners. Based on the examiners’ thorough reviews of the file, interviews with the Veteran, and examinations, the Board accords greater probative weight to their opinions than the determination rendered by SSA under a different set of regulations. Moreover, the SSA determination considered multiple disabilities for which service connection has not been granted. Here, the central inquiry is whether the Veteran’s service-connected disability alone is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs against finding that the Veteran’s service-connected disability preclude him from obtaining or engaging in substantially gainful employment. (CONTINED ON NEXT PAGE) As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk