Citation Nr: 19137635 Decision Date: 05/15/19 Archive Date: 05/15/19 DOCKET NO. 11-28 303 DATE: May 15, 2019 ORDER Entitlement to an increased rating for degenerative disc disease (DDD), lumbar spine, rated 10 percent prior to July 25, 2018 and 20 percent thereafter is denied. Entitlement to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to July 25, 2018, the preponderance of the evidence is against a finding that the Veteran’s degenerative disc disease (DDD), lumbar spine, manifested with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. 2. As of July 25, 2018, the preponderance of evidence is against a finding that the Veteran's degenerative disc disease (DDD), lumbar spine, manifested with 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. 3. The preponderance of the competent and credible evidence of record indicates that the Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for degenerative disc disease, lumbar spine, rated 10 percent prior to July 25, 2018 and 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The rating for degenerative disc disease, lumbar spine, was increased from 10 percent to 20 percent in a January 2019 rating decision, effective July 25, 2018. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher initial rating for degenerative disc disease, lumbar spine, remains on appeal. 1. Entitlement to an increased rating for degenerative disc disease, lumbar spine, rated 10 percent prior to July 25, 2018 and 20 percent thereafter Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is used under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavorable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242). Degenerative arthritis of the spine can also be rated using Diagnostic Code 5003. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an 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. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome 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 rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular 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. 38 C.F.R. § 4.59. The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5242 for degenerative disc disease (DDD), lumbar spine, as 10 percent prior to July 25, 2018 and 20 percent thereafter. The Board notes that the Veteran’s claims file contains contemporaneous VA and private medical records for the back disability throughout the period on appeal. However, on review of all the evidence of record, both lay and medical, the Board finds that, during the entire rating period on appeal, the Veteran’s degenerative disc disease, lumbar spine, does not more nearly approximate a rating in excess of 10 percent prior to July 25, 2018, nor does it more nearly approximate a rating in excess of 20 percent rating as of July 25, 2018. Prior to July 25, 2018, the medical records do not show that the Veteran’s degenerative disc disease (DDD), lumbar spine, manifested with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. As of July 25, 2018, the medical evidence does not show that the Veteran’s degenerative disc disease, lumbar spine, manifested with 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 throughout the entire period of appeal. Initially, the Board notes that there is no medical evidence of ankylosis of the thoracolumbar spine or IVDS during the course of the appeal. Thus, a higher rating cannot be assigned on the basis of ankylosis or IVDS. On VA examination in January 2010, the Veteran was fully ambulatory with a normal gait and no acute distress. Upon range of motion testing, the Veteran had initial forward flexion of the thoracolumbar spine to 90 degrees. Extension was to 19 degrees. Right lateral flexion was to 25 degrees. Left lateral flexion was to 25 degrees. Right lateral rotation was to 30 degrees. Left lateral rotation was to 30 degrees. Repetitive range of motion testing did not reveal any increase in pain and no fatigue, weakness, lack of endurance or incoordination was noted. Additionally, no discomfort or difficulty with range of motion testing, nor effusion, edema, erythema, tenderness, deformities, or instability was found. The Veteran had well-developed muscularity and there was no evidence of muscle atrophy or hypertrophy. During this examination, the Veteran reported being hospitalized and incapacitated for 10 days in September 2009 due to his back issues. On diagnostic testing, the Veteran was diagnosed with lumbosacral spine with degenerative joint disease without radiculopathy. On VA examination in June 2014, the Veteran had initial forward flexion of the thoracolumbar spine to 80 degrees with painful motion beginning at 80 degrees. Extension was to 20 degrees with painful motion beginning at 20. Right lateral flexion was to 30 degrees or greater with no objective evidence of painful motion. Left lateral flexion was to 30 degrees or greater with no objective evidence of painful motion. Right lateral rotation was to 30 degrees or greater with no objective evidence of painful motion. Left lateral rotation was to 30 degrees or greater with no objective evidence of painful motion. The range of motion contributed to a functional loss in that the Veteran had pain on movement and less movement than normal. However, no additional loss of function or range of motion was found after repetitive-use testing. The Veteran did not have an abnormal gait, muscle atrophy, decreased tendon reflexes, guarding, or muscle spasm of the thoracolumbar spine. Additionally, no deformity, mal-alignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weightbearing were found during examination. The Veteran did not have any neurologic abnormalities related to his back disability, radicular pain, or IVDS of the thoracolumbar spine. Diagnostic testing showed arthritis of the thoracolumbar spine. On VA examination in July 2018, the Veteran had initial forward flexion of the thoracolumbar spine to 40 degrees. Extension was to 20 degrees. Right lateral flexion was to 10 degrees. Left lateral flexion was to 15 degrees. Right lateral rotation was to 30 degrees. Left lateral rotation was to 30 degrees. Pain was noted on all range of motion testing. The range of motion contributed to a functional loss in that the Veteran had pain on movement but no pain on weightbearing. However, no additional loss of function or range of motion was found after repetitive-use testing. Pain, weakness, fatigability, and lack of endurance were found to significantly limit ability with repeated use over a period of time and during flare-ups. The Veteran did not have an abnormal gait, decreased deep tendon reflexes, decreases sensation, loss of strength, muscle atrophy, tenderness, guarding, or muscle spasm of the thoracolumbar spine. The Veteran did not have any neurologic abnormalities related to his back disability or IVDS of the thoracolumbar spine but did experience moderate, intermittent radicular pain involving the L4/L5/S1/S2/S3 right nerve roots. The Board finds that, during the period on appeal, prior to July 25, 2018, the Veteran’s degenerative disc disease, lumbar spine, has warranted a 10 percent rating. During this period, medical records confirm that the Veteran’s forward flexion was, at worst, to 80 degrees, which is greater than 60 degrees but not greater than 85 degrees. The Veteran's combine range of motion of the thoracolumbar spine was, at worst, to 219 degrees which is greater than 120 degrees but not greater than 235 degrees. Lastly, the Veteran's DDD did not result in an abnormal gait. Per Diagnostic Code 5242, this level of impairment is consistent with a 10 percent disability evaluation. A higher rating is not warranted for the Veteran’s back disability prior to July 25, 2018 because the evidence of record does not show that the Veteran’s degenerative disc disease (DDD), lumbar spine, manifested with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 during this period. Per Diagnostic Code 5242, this level of impairment is needed for a 20 percent disability evaluation The Board finds that, effective July 25, 2018, the Veteran’s degenerative disc disease, lumbar spine, has warranted a 20 percent rating. During this period, medical records confirm that the Veteran’s forward flexion was to 40 degrees, which is greater than 30 degrees but not greater than 60 degrees. Per Diagnostic Code 5242, this level of impairment is consistent with a 20 percent disability evaluation. A higher evaluation, of 30 percent, is not warranted for DDD of the lumbar spine during this period because the evidence of record does not show forward flexion of the cervical spine to 150 degrees or less; or favorable ankylosis of the entire cervical spine. Per Diagnostic Code 5242, this level of impairment is needed for a 30 percent disability evaluation. A higher evaluation, of 40 percent, is not warranted for DDD of the lumbar spine during this period because the evidence of record does not show forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire cervical spine. Per Diagnostic Code 5242, this level of impairment is needed for a 40 percent disability evaluation. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome (IVDS) formula based on incapacitating episodes. However, to date, the Veteran has not been shown to have incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician of a total duration of at least two weeks but less than four weeks during a 12-month period. Accordingly, the Board finds that a rating in excess of 10 percent for the Veteran’s DDD, lumbar spine disability prior to July 25, 2018 and in excess of 20 percent thereafter is not warranted. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to individual unemployability (TDIU) The Veteran is seeking a TDIU, contending that he is unemployable solely due to the service-connected disabilities. VA will assign a TDIU rating when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is assigned only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment, where the earned annual income does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). A Veteran may be considered unemployable upon termination of employment that occurred because of disability, or in which special consideration was given on account of the disability, when it is satisfactorily shown that the Veteran is unable to secure further employment. 38 C.F.R. § 4.18. The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in and of itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service-connected for PTSD, rated 30 percent; coronary artery disease status post triple bypass with stenting and scar, rated 30 percent; diabetes mellitus type 2 with erectile dysfunction, rated 20 percent; degenerative disc disease, lumbar spine, rated 20 percent; and radiculopathy, right lower extremity associated with degenerative disc disease, lumbar spine, rated 20 percent. The Veteran does not meet the schedular criteria for assignment of TDIU. The Veteran does not have one disability rated 40 percent or higher and a combined rating of 80 percent. Therefore, consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(a) is not warranted. Nevertheless, a Veteran may be entitled to a TDIU if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making the determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and to TDIU under 38 C.F.R. § 4.16(b), although similar, are based on different factors. Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) requires a determination that a particular Veteran is made unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. That means that the Board should take into account the Veteran’s specific circumstances including his disabilities, education, and employment history when determining if he is unable to work. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities, alone, are of sufficient severity to produce unemployability. Here, the preponderance of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. It is unclear, at best, that the Veteran is unable to find substantially gainful employment at this time. The Veteran is a former policeman in the state of Alabama. A review of the Veteran’s treatment records does not show any indication that his service connected conditions cause unemployability. During VA examination in January 2010, the Veteran's back injury was found to cause no impediment to his activities of a daily living. Additionally, at the time of this examination, the Veteran was fully ambulatory with a normal gait. VA examinations from June 2014 note that the Veteran's heart condition, diabetes mellitus type II (including complication of the disorder), thoracolumbar spine condition and scars do not impact his ability work. During June 2014 VA PTSD examination, the Veteran noted that he had been working full time until October 2011, when he retired due to an accident. During this examination, the examiner noted that a mental condition had been formally diagnosed, but symptoms were not currently severe enough either to interfere with occupational and social functioning or to be associated with continuous medication. After VA examination in September 2016, the Veteran's diabetes (and any complications of the disorder) was again found to have no functional impact on his ability to work. VA examination from July 2018 found that the Veteran's heart and back conditions did impact his ability to work in that he could no longer perform labor intensive work or a job that required standing or walking for longer than 20 minutes without a break, bending, lifting, or carrying things. After VA examination in July 2018, the Veteran’s diabetes (and any complications of the disorder) was again found to have no functional impact on his ability to work. During a December 2018 VA PTSD examination, the Veteran was noted as having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. During this examination the Veteran acknowledged being a part time volunteer deputy sheriff in Mobile County, Alabama. He also stated that he completes 12 continuing education credit hours to maintain his Alabama Peace Officers’ Standards and Training certification. During this examination, the examiner noted that the Veteran has difficulty attending to or is easily distracted from the task at hand and that his sleep is so disrupted that he is usually fatigued at work, making concentration and focus on work assignments difficult. The Board finds the aforementioned examinations and opinions to be highly probative, as they were not only performed by medical professionals, but also have evaluated the Veteran’s condition and medical history. After reviewing the entire record, the Board concludes that entitlement to a TDIU is not warranted pursuant to 38 C.F.R. § 4.16 (b). The most probative evidence of record shows that, solely considering the Veteran’s service-connected disabilities, the Veteran is more likely able to obtain gainful employment, if that employment does not require manual labor. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran’s situation as a result of the service-connected disabilities. While the Veteran may be unable to perform work such as manual labor, or that requires him to be on his feet often, the weight of the probative evidence of record does not indicate that he is unable to perform some type of substantially gainful employment in a sedentary setting, such as office work. Overall, in terms of service-connected disabilities, the Veteran is not able to lift or carry items, stand for prolonged periods of time and has difficulty bending. Otherwise, the service-connected disabilities have not been shown to cause significant occupational impairment. All VA examinations indicate that the Veteran’s service-connected disabilities only have mild to no effects on the Veteran’s ability to work. Overall, the record suggest that the Veteran’s service-connected disabilities do not preclude him from work that does not require manual labor. In arriving at this decision, the Board has considered the Veteran’s relative education, training, and work background. The Veteran has a high school diploma and is able to maintain Alabama Peace Officers’ Standards and Training certification. As of the December 2018 VA examination, the Veteran was a part time volunteer deputy sheriff in Mobile County, Alabama which demonstrates that he has the education, training, and experience to work in a similar capacity. Accordingly, the Board does not find that strictly based on the service-connected disabilities, the Veteran is unable to secure or follow substantially gainful employment. To establish entitlement to a total disability rating for compensation based on individual unemployability, the Veteran must be unemployable in fact, and thus unable to secure or follow substantially gainful employment, by reason of service-connected disabilities. Consequently, considering the overall disability picture, and the Veteran’s history of employment, the Board finds that preponderance of the evidence shows that the Veteran is not unemployable solely due to service-connected disabilities. The impact of his nonservice-connected disabilities may not be considered under the criteria for a TDIU, which only considers service-connected disabilities. In making that determination, the Board is not refuting the Veteran’s noted physical limitations or his own contentions that his service-connected disabilities affect his ability to work. However, the rating schedule adequately contemplates the symptoms at issue. (Continued on the next page)   Therefore, the Board must conclude that the criteria for invoking the procedures of 38 C.F.R. 4.16(b), for consideration of the assignment of a TDIU are not met. Thus, referral of the TDIU claim for extra-schedular consideration is not warranted. The Board finds that the preponderance of the evidence is against the claim for TDIU and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.