Citation Nr: 20007853 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 12-23 167 DATE: January 30, 2020 ORDER Entitlement to an initial rating in excess of 10 percent prior to June 2, 2010, in excess of 20 percent from June 2, 2010 to October 15, 2018, and in excess of 40 percent from October 16, 2018, for service-connected mild thoracic degenerative joint disease (DJD) and mild thoracic spine scoliosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. For the appeal period from September 7, 2006 to June 1, 2010, the Veteran’s service-connected mild thoracic DJD and mild thoracic spine scoliosis resulted in pain, stiffness, and difficulty in movement, with forward flexion limited to no less than 90 degrees and a combined range of motion of greater than 120 degrees; it has not resulted in ankylosis or intervertebral disc syndrome (IVDS). 2. For the appeal period from June 2, 2010 to October 15, 2018, the Veteran’s service-connected mild thoracic DJD and mild thoracic spine scoliosis resulted in pain, stiffness, and difficulty in movement, and forward flexion limited to no less than 60 degrees; it has not resulted in ankylosis or IVDS. 3. For the appeal period from October 16, 2018, the Veteran’s service-connected mild thoracic DJD and mild thoracic spine scoliosis resulted in pain, stiffness, and difficulty in movement, and forward flexion limited to no more than 20 degrees; it has not resulted in ankylosis or IVDS. 4. The Veteran’s service-connected mild thoracic DJD and mild thoracic spine scoliosis do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to June 2, 2010, in excess of 20 percent from June 2, 2010 to October 15, 2018, and in excess of 40 percent from October 16, 2018, for service-connected mild thoracic DJD and mild thoracic spine scoliosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Army from March 1972 to December 1973. This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board remanded the issues of entitlement to an increased rating for the Veteran’s back disability and entitlement to a TDIU. The Board also granted the Veteran’s claim for an effective date earlier than June 8, 2009 for the award of service-connected for his back disability. Additionally, as to the Veteran’s allegation of clear and unmistakable error (CUE) in the December 1975 rating decision, the Board remanded the issue to the agency of original (AOJ) for consideration and adjudication. In September 2019, the RO issued a rating decision that denied the Veteran’s CUE claim. Each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326 (2006). Once a claim is adjudicated by the RO, that decision becomes final unless the claimant appeals the decision. See 38 U.S.C. § 7105(c); Jarrell v. Nicholson, 20 Vet. App. 326, 331 (2006). The request for appellate review by the Board is initiated by filing a notice of disagreement (NOD) and is completed by filing a Substantive Appeal. See 38 U.S.C. § 7105(a); Jarrell v. Nicholson, 20 Vet. App. 326, 331 (2006). Here, the Veteran did not yet file a NOD with regard to the September 2019 rating decision that denied the CUE issue; a substantive appeal has not been filed either. The Veteran has until one year from the date of mailing of the September 2019 rating decision to appeal the decision before it becomes final. Thus, the Board does not currently have jurisdiction over this issue. 1. Entitlement to a higher initial evaluation for service-connected thoracic mild DJD and mild thoracic spine scoliosis, currently with evaluations of 10 percent prior to June 2, 2010, 20 percent from June 2, 2010 to October 15, 2018, and 40 percent from October 16, 2018 to the present. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran’s service-connected mild thoracic DJD and mild thoracic spine scoliosis is evaluated at 10 percent from September 7, 2006, to June 1, 2010, 20 percent from June 2, 2010 to October 15, 2018, and 40 percent from October 16, 2018, under 38 C.F.R. § 4.71(a), Diagnostic Code 5242. The General Rating Formula for Disease and Injuries of the Spine is laid out in 38 C.F.R. § 4.71(a), Diagnostic Codes 5235 to 5243. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71(a). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine, Note 1. 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 normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5243. Intervertebral disc syndrome (IVDS) is evaluated 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 evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is assigned for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. Note (1) provides that for the purposes of evaluations under Diagnostic Code 5243, 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. § 4.71(a), Diagnostic Code 5243. In February 2010, the Veteran was afforded a VA examination for his back disorder. The Veteran reported that he had mid-back pain, had to move around, and could not sit, stand or walk for more than 15 to 30 minutes. He had tingling in his hand, especially if he raised his arms. He had constant pain in the mid-back area of his shoulder blades. He felt like someone hit him with a stick. Pain radiated to his upper shoulders, neck, and sometimes down his legs. The Veteran had severe flare-ups that occurred every 2 to 3 weeks and lasted 1 to 2 days. His flare-ups were caused by long days, going places, or prolonged driving. The Veteran could only walk about one quarter of a mile. However, the Veteran’s gait was normal. The VA examiner reported that the Veteran did not have gibbus, kyphosis, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis, or ankylosis. The Veteran did not have atrophy, guarding, or spasms. Initial range of motion testing of the thoracolumbar spine revealed forward flexion to 90 degrees, extension to 10 degrees, left lateral flexion to 15 degrees, left lateral rotation to 25 degrees, right lateral flexion to 150 degrees, and right lateral rotation to 25 degrees. There was objective evidence of pain following repetitive motion, but it did not result in additional limitations after three repetitions. An x-ray impression revealed mild thoracic spine levoscoliosis and mild degenerative changes. The Veteran was diagnosed with thoracic mild degenerative joint disease and mild thoracic spine scoliosis. The Veteran was not employed. On his last job, he was a spray painter for an army depot. His back disorder had a mild effect on his chores and recreation only. In August 2010, the Veteran was afforded a VA examination for his back condition. His symptoms included mid-back pain, had to move around, and could not sit, stand, or walk more than 15 to 30 minutes. He had tingling in his hands, especially if he raised his arms. He stated that his condition was getting progressively worse. He had to take tramadol and etodolac for the pain. The condition of raising his arms and loss of blood flow was bilateral. The Veteran reported that it felt like being hit in the back by a baseball bat. He had neck pain and headaches. There was pain every day, which interfered with his sleep. The Veteran stated that he had tried medications, but most recently tramadol and etodolac, which he discontinued. The Veteran had severe flare-ups every 2 to 4 months that lasted hours to months. It was only alleviated by activity, trips to the chiropractor, and acupuncture. He did not have gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, scoliosis, or ankylosis. Initial range of motion testing of the thoracolumbar spine revealed flexion to 80 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, left lateral rotation to 30 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 30 degrees. There was objective evidence of pain on active range of motion. The VA examiner reported that the Veteran retired in 2003. The examiner diagnosed the Veteran with multilevel degenerative joint and disc disease of the cervical and thoracic spine. The problem associated with the diagnosis was mild degenerative joint disease and thoracic spine scoliosis. It affected his work such that he was assigned different duties and was increasingly absent from work. He had decreased mobility, problems with lifting and carrying, decreased strength in the upper extremity, and pain. He had problems with exertional chores and sports. The Veteran had a VA examination in March 2011. The Veteran was diagnosed with degenerative arthritis of the thoracic spine and scoliosis. The Veteran reported that he had mild back pain. The Veteran had neck pain and pain in the center of his back, which radiated across his back; he reported numbness in his arms for over 30 years. The Veteran did not have guarding, spasms, tenderness, or ankylosis. However, the Veteran had mild scoliosis. Initial range of motion testing of the thoracolumbar spine revealed flexion to 60 degrees, extension to 30 degrees, left lateral flexion to 25 degrees, right lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. For his employment history, the Veteran reported that his usual occupation was an electrician, but he had retired. He last worked in 2003 part-time. He reported that his spinal pain was the reason for him not working currently. It affected his ability to participate in occupational activities, specifically by making it difficult for him to lift and carry objects. He also had a lack of stamina and weakness or fatigue. He had problems doing chores, and he could not do dishes because of his back pain. He also could not sit very long due to back pain. However, he was able to bathe and dress himself. He had to lie down and rest during his breaks due to back pain. The VA examiner noted that the Veteran’s physical findings were minimal. Clinically, there was no evidence of severe impairment that would prohibit gainful employment. Based on the exam, the examiner opined that he was capable of at least sedentary work. In August 2016, the Veteran had another VA examination for his back disorder. The Veteran reported that he continued to have mid and upper back pain and fatigue; if the Veteran worked more than 4 hours in a day at any strenuous work, he would “black out.” The Veteran did not report flare-ups of the thoracolumbar spine. The Veteran reported having functional loss or functional impairment of the thoracolumbar spine. Initial range of motion testing revealed flexion to 65 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, left lateral rotation to 20 degrees. The VA examiner noted that the Veteran had pain in forward flexion, extension, left lateral flexion, and left lateral rotation, but it did not result in functional loss. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. He was mildly tender to palpation over the mid thoracic paraspinals. The Veteran was able to perform repetitive use testing with at least three repetitions; however, there was no additional functional loss. The Veteran was also being examined immediately after repetitive use over time. He also did not have guarding or muscle spasm of the thoracolumbar spine. The VA examiner noted that the Veteran had less movement than normal due to ankylosis, adhesions, etc. The VA examiner noted that the Veteran did not have radiculopathy or ankylosis. He also did not have intervertebral disc syndrome (IVDS). The Veteran did not use any assistive devices as a normal mode of locomotion. He stated that he had been unable to work for 10 years or more due to the effects of his back disorder on other body systems, including GI problems, as well as neck and shoulder functioning. The Veteran was afforded a VA examination in November 2018; he was diagnosed with degenerative arthritis of the spine and degenerative joint disease and scoliosis of the thoracic spine. The Veteran had constant sharp, dull pain to his back made worse with movement, sitting, standing, and walking. He rated the pain as 4 to 8 on a scale of 0 to 10. He did not report any flare-ups or functional loss or functional impairment of the thoracolumbar spine. Initial range of motion testing revealed forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran had severe decreased range of motion due to pain in all ranges of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions. The Veteran did not have guarding, muscle spasms, or radiculopathy. He also did not have ankylosis or intervertebral disc syndrome. He also did not use any assistive devices as a normal mode of locomotion. The VA examiner opined that it was at least as likely as not that the Veteran was able to perform light work during a normal 8-hour workday. Light work involved exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. It was also noted to include work that required walking or standing to a significant degree, required sitting most of the time, but entailed pushing and/or pulling of arm or leg controls, and required working at a production rate pace entailing the constant pushing and/or pulling of material even though the weight of those materials was negligible. A rating in excess of 10 percent for service-connected mild thoracic DJD and mild thoracic spine scoliosis is not warranted from September 7, 2006 to June 1, 2010. The Veteran was afforded a VA examination in February 2010. The Veteran complained of mid-back pain and restricted movement. The Veteran could not sit, stand, or walk more than 15 to 30 minutes. The Veteran did not have any spasms, atrophy, or guarding. Initial range of motion testing of the thoracolumbar spine revealed forward flexion to 90 degrees, extension to 10 degrees, left lateral flexion to 15 degrees, left lateral rotation to 25 degrees, right lateral flexion to 150 degrees, and right lateral rotation to 25 degrees. The Veteran did not have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran’s back condition did not meet any of the requirements to warrant a higher rating. Thus, a rating in excess of 10 percent is not warranted for service-connected mild thoracic DJD and mild thoracic spine scoliosis for the appeal period from September 7, 2006 to June 2, 2010. A rating in excess of 20 percent for service-connected mild thoracic DJD and mild thoracic spine scoliosis is not warranted from June 2, 2010 to October 15, 2018. The Veteran’s disability caused him to have pain in his mid-back and across his shoulder blades. He had difficulty sitting, standing, and walking for more than 15 to 30 minutes. Under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran’s back disability would need to exhibit unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, in order for a rating in excess of 20 percent to be assigned. The Veteran’s range of motion for his back has been tested during numerous VA examinations throughout the period on appeal. On the Veteran’s August 2010 VA examination, the forward flexion of his thoracolumbar spine was to 80 degrees. On his March 2011 VA examination, forward flexion of his thoracolumbar spine was to 60 degrees. On his August 2016 VA examination forward flexion of his thoracolumbar spine was to 65 degrees. Further, his VA examinations show that he did not have ankylosis or IVDS. Therefore, a rating in excess of 20 percent is not warranted for the Veteran’s service-connected mild thoracic DJD and mild thoracic spine scoliosis. A rating in excess of 40 percent for service-connected mild thoracic DJD and mild thoracic spine scoliosis is not warranted from October 16, 2018. Under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran’s back disability would need to exhibit unfavorable ankylosis of the entire spine or unfavorable ankylosis of the entire thoracolumbar spine, in order for a rating in excess of 40 percent to be assigned. On the Veteran’s November 2018 VA examination for his back condition, the Veteran complained of sharp, dull pain to the back, which was made worse by movement, sitting, standing, and walking. The forward flexion of his thoracolumbar spine was to 20 degrees. However, the November 2018 VA examiner noted that the Veteran did not have ankylosis or IVDS. Further, the Veteran did not have guarding, muscle spasms, or radiculopathy. Therefore, a rating in excess of 40 percent is not warranted from October 16, 2018. The Board has also considered the Veteran’s lay statements regarding his symptomatology. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. 2. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, 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. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran is currently service-connected for mild thoracic DJD and mild thoracic spine scoliosis at 10 percent from September 7, 2006 to June 1, 2010, 20 percent from June 2, 2010 to October 15, 2018, and 40 percent from October 16, 2018. The Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) for any portion of the period on appeal. Therefore, the Board must determine whether to refer the claim for TDIU to the Director of Compensation Service under 38 C.F.R. § 4.16(b). For the claim to be referred to the Director of Compensation Service, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability. Following a review of the evidence, the Board finds that it has not been shown that the Veteran’s service-connected disability has rendered him unable to secure or follow a substantially gainful occupation. In October 2018, the Veteran submitted a VA Form 21-8940 requesting entitlement to a TDIU. Specifically, the Veteran asserted that his service-connected back disorder prevented him from working. He reported that he last worked full-time in December 2003. He was the owner of a business. He worked as an electrician. The Veteran stated that he was unable to commit to a job because he knew that his back pain would eventually make him quit his job. At all of his jobs, his back pain got to be too bad to tolerate working. It was impossible for him to work 20 hours a week, sometimes even less. The Veteran’s highest level of education was a GED. In December 2007, the Veteran submitted a letter from a private physician, Dr. D.C.B. Dr. D.C.B. opined that the Veteran was unable to work a 40-hour week or do any lifting overhead due to the condition of his thoracic spine. In a May 2008 physical therapy consultation note, the Veteran was diagnosed with back pain. It was reported that the Veteran lived with his wife, was independent in all activities of daily living, and drove. The Veteran reported a throbbing dull pain on his back across and below his scapula. He also reported a tingling sensation on his arms when he raised his arms up more than 30 seconds. He could not sit or stand for more than 30 minutes due to pain. Bending made him dizzy sometimes. In August 2010, the Veteran submitted lay statements from others that supported his claim for a TDIU. For example, the Veteran’s brother, T.D.D., stated that the Veteran lost his job he held once he got out of the military because of his back and was never able hold a job since then. Also, of record are the Veteran’s records from the Social Security Administration (SSA). On the Veteran’s August 2010 Functional Report, it was noted that the Veteran went outside twice a day. The Veteran walked and drove a car. The Veteran could not sit, stand, or lay down for very long. He used a cane for locomotion; he struggled to walk from one place to another. In a physical activities questionnaire, the Veteran reported that he could stand for 15 minutes, walk for 10 minutes, and sit for 30 minutes. He was able to shower. He reported that he went into a clothing store to shop for about 10 minutes, but he left without buying anything because he did not feel like trying on the pants. On his August 2009 report of psychological evaluation, the Veteran reported that he occasionally did laundry, and he mowed the yard with a riding mower. Also, of record in the Veteran’s SSA file, was a March 2008 letter from the licensed psychologist, Dr. R.G.S. Dr. R.G.S. reported that the Veteran started selling marijuana for a living after he left his position with the Army depot, and continued to do so for the next 30 years. A report from a disability medical examination in February 2008 documented the Veteran’s reports of having problems sitting and standing too long or bending and twisting due to back pain, but also recorded physical examination findings of no significant deformity or tenderness noted over the thoracic and lumbar areas, with slight tenderness over paraspinal muscles. The Veteran demonstrated “good range of motion of the spine,” and the examiner commented that the Veteran’s condition at that time did not cause any significant functional limitation, but indicated that his underlying depression may impair some of the functioning ability. The Veteran’s VA examinations showed that the Veteran’s back disorder limited or restricted his ability to function but did not prevent him from securing or following substantially gainful employment. The Veteran suffered from numbness, pain, and decreased range of motion due to his back disorder. On his February 2010 VA examination, the Veteran reported that he had mid-back pain, had to move around, and could not sit, stand or walk for more than 15 to 30 minutes. The March 2011 VA examiner reported that the Veteran had difficulty carrying and lifting objects, had problems doing chores, and could not sit for very long. However, he was able to bathe and dress himself. The VA examiner noted that the Veteran’s physical findings were minimal. The March 2011 VA examiner concluded that, clinically, there was no evidence of severe impairment that would prohibit gainful employment. Furthermore, the November 2018 VA examiner also opined that it was at least as likely as not that the Veteran was able to perform light work during a normal 8-hour workday. Light work involved exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. The Veteran could do work that required walking or standing to a significant degree, required sitting most of the time, but entailed pushing and/or pulling of arm or leg controls, and required working at a production rate pace entailing the constant pushing and/or pulling of material even though the weight of those materials was negligible. Based on the foregoing evidence, it is clear that the Veteran is not unable to secure or follow a substantially gainful occupation as a result of his service-connected back disorder. Despite the Veteran’s back pain and restricted range of motion, he was still able to bathe, drive, do laundry, and mow the lawn. He could also sit and stand, although not for very long periods of time. Also, the Veteran had multiple VA examinations, in which the examiners concluded that he was still capable of working despite his limitations. Here, the specific examination findings of trained health care professionals read in concert with the objective evidence of record compels the Board’s finding that his single service-connected disability is not of such a severity to preclude his ability to secure or follow a substantially gainful occupation. As for the medical opinion by Dr. D.C.B. in which he opines that the Veteran is unable to work due to his back disorder, the Board finds that the other evidence outweighs this opinion because the evidence overwhelming shows that although the Veteran is restricted or limited in his functional ability, he still has the physical ability to perform work activities. Accordingly, the Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected mild thoracic DJD and mild thoracic spine scoliosis. The Board declines to remand the claim for referral to the Director of Compensation Service for extraschedular consideration. For all periods on appeal, entitlement to a TDIU is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.