Citation Nr: 21074942 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 10-47 619 DATE: December 16, 2021 ORDER 1. Entitlement to service connection for a cervical spine disability, to include as secondary to the service-connected lumbar spine disability, is denied. 2. Entitlement to a rating in excess of 40 percent for the intervertebral disc syndrome (IVDS), with degenerative joint disease, of the lumbar spine (lumbar spine disability) is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to January 24, 2019, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's cervical spine disability did not have its onset in service, and was not caused or aggravated by service or a service-connected disability. 2. Throughout the period on appeal, the Veteran's lumbar spine disability did not manifest with symptoms of, or analogous to, unfavorable ankylosis of the thoracolumbar spine or the entire spine, and the record does not indicate that the Veteran has been prescribed bed rest for incapacitating episodes totaling at least six weeks, during a 12-month period, at any point throughout the period on appeal. 3. Prior to January 24, 2019, the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 3. Prior to January 24, 2019, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1154 (a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to July 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2010 and March 2011 rating decisions. In March 2015, a Travel Board hearing was held before a Veterans Law Judge (VLJ) who is no longer at the Board; a transcript of the hearing is in the record. In a June 2017 submitted written statement, the Veteran confirmed that he did not wish to have another Board hearing before a VLJ. A June 2015 Board decision denied entitlement to a rating in excess of 20 percent for the lumbar spine disability and remanded the claim of service connection for a cervical spine disability. The Veteran appealed the June 2015 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A December 2016 CAVC Memorandum Decision vacated the Board's decision and remanded the matter of entitlement to a rating in excess of 20 percent for the lumbar spine disability for further development and readjudication. Most recently, in March 2021, the case was remanded for further development. 1. Entitlement to service connection for a cervical spine disability, to include as secondary to the service-connected lumbar spine disability, is denied. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has been diagnosed with degenerative arthritis of the cervical spine. See January 2011 VA Examination Report. Thus, the first element of a service connection claim is satisfied. In this case, the preponderance of the evidence is against a finding that there is a link between the Veteran's cervical spine disability and his service-connected lumbar spine disability or his military service. The Veteran has attributed his cervical spine disability to a fall from a vehicle during service, as well as his service-connected lumbar spine disability, which resulted from heavy lifting. Significantly, at the March 2015 Board hearing, the Veteran testified that his cervical spine symptoms did not occur on a continuous basis following service. The Board notes that there are November 1976 service treatment records that documented the Veteran's complaints of lower back pain and related symptomatology due to heavy lifting during service. However, no such complaints were noted related to the cervical spine during service at this time. Additionally, at the Board hearing, the Veteran confirmed that he went to sick call after the fall in service, but that there was no mention of his cervical spine at that time. Service treatment records are silent regarding any symptoms, diagnoses, or treatment specifically involving the cervical spine. The Veteran also declined to undergo a separation examination at the conclusion of his military service. Thus, the Board finds that the in-service complaints are not shown to have any relationship to the currently diagnosed cervical spine disability. The Board acknowledges that multiple VA medical opinions have been obtained throughout the pendency of this appeal. Indeed, numerous negative opinions were deemed inadequate in the March 2021 Board remand. However, the January 2019 medical opinion regarding secondary service connection, as well as the most recent June 2021 VA medical opinion are considered adequate and probative for the purposes of adjudicating this appeal. The January 2019 VA examiner opined that it was less likely than not that the Veteran's cervical spine disability was caused by the lumbar spine disability. He noted that there was insufficient evidence that arthritis in one joint caused arthritis in another part of the body, based upon medical literature. The examiner also opined that the Veteran's cervical spine disability was less likely than not aggravated beyond its natural progression by the service-connected lumbar spine disability. He explained that there was insufficient evidence in the medical record to reflect that IVDS with degenerative arthritis accelerated the progression of the degenerative arthritis of the cervical spine. The examiner further indicated that although repetitive movements or events such as fractures, surgeries, or ligament tears could lead to degenerative arthritis in areas of the body, such processes were normally localized to the affected areas of the body under frequent or repetitive use. The examiner determined that the medical evidence of record was insufficient to establish a baseline level of severity of the cervical spine arthritis. The Board notes that the March 2021 remand determined that the January 2019 VA opinion regarding direct service connection was inadequate. In the June 2021 medical opinion, a VA examiner concluded that it was less likely than not that the diagnosed cervical spine disability was incurred in or caused by the Veteran's military service, to include the 1976 in-service lifting injury. The examiner acknowledged the Veteran's lay statements regarding his claimed in-service injuries, but determined that the evidence of record did not support a finding that such injuries were the underlying etiology of the current condition. He concluded that the documented in-service low back injury, due to heavy lifting, was an entirely separate entity from the cervical spine disability and found that the two were unrelated. The examiner opined that the alternative etiology of the Veteran's cervical spine injury was due to the natural aging process and degeneration over time. The Board affords the January 2019 and June 2020 VA opinions a high probative value. In this regard, the examiners completed in-person examinations of the Veteran and thoroughly reviewed the claims file, to include all service treatment records, post-service treatment records and lay statements, and offered comprehensive discussions analyzing all of the pertinent evidence of record and explaining the bases for the opinions. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The March 2021 examiner acknowledged the in-service heavy lifting injury but concluded that, in the Veteran's case, the more likely etiology of the cervical spine disability was due to the natural aging process. The January 2019 VA examiner sufficiently explained that the evidence of record and medical literature did not support a correlation between lumbar spine arthritis and cervical spine arthritis. These conclusions were based upon the Veteran's own medical history, the documentation available in the record, as well as scientific reasoning. As these probative opinions are against the claim, the Board is persuaded that service connection for a cervical spine disability is not warranted. As discussed above, lay persons are competent to provide opinions on some medical issues. In this case, the Veteran is not competent to render an etiology opinion for his cervical spine disability. Determining the etiology of the Veteran's condition requires medical inquiry into musculoskeletal processes and functioning. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Because the Veteran's lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran's assertion that his cervical spine disability was caused by his military service, or caused or aggravated by the lumbar spine disability. There has been no other evidence submitted by the Veteran in support of his claim regarding symptoms or additional information regarding on going treatment in and since service. As such, the January 2019 and June 2021 VA medical opinions are the only probative evidence of record related to medical nexus. Thus, the Board finds that a preponderance of the evidence is against a finding that the Veteran's cervical spine disability is related to his military service or service-connected lumbar spine disability, and service connection for a cervical spine disability is, therefore, not warranted. 2. Entitlement to a rating in excess of 40 percent for the lumbar spine disability is denied. The Veteran filed a claim for an increased rating in October 2009. In a January 2010 rating decision, the RO continued the 20 percent evaluation for the lumbar spine disability. The Veteran disagreed with this rating and ultimately certified this appeal to the Board. In a September 2021 rating decision, the RO increased the evaluation for the lumbar spine disability to 40 percent, effective October 21, 2009, the filing date of the current claim. However, as this does not constitute a full grant of the benefit sought on appeal, this matter remains before the Board. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2020). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. The Veteran's lumbar spine disability has been rated under 38 C.F.R. § 4.71a, DC 5243 for IVDS. As a preliminary matter, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. In pertinent part, DC 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Overall, these amendments do not impact the rating for this disability. Under DC 5243, IVDS is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. The criteria provide that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. 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, DC 5243, Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Throughout the appeal period, the Board finds that the Veteran is adequately compensated and already in receipt of a 40 percent schedular rating for his lumbar spine disability. The only basis for a higher rating of 50 percent under the General Rating Formula is if there is evidence of ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's lumbar spine disability. The record shows that ankylosis of the spine was specifically denied by the December 2009, May 2014, January 2019, and January 2021 VA examiners. Likewise, VA treatment records are silent regarding any findings of ankylosis, or any restrictions of motion that would be akin to ankylosis, throughout the period on appeal. Additionally, the record does not indicate that the Veteran has been prescribed bed rest for incapacitating episodes totaling at least six weeks, during a 12-month period, at any point throughout the period on appeal, as to warrant a higher rating under DC 5243. Thus, the Board finds that a higher rating in excess of 40 percent based on ankylosis or IVDS is not supported or warranted under the General Rating Formula. See 38 C.F.R. § 4.71a. The Board recognizes that the Veteran believes his lumbar spine disability to be worse than reflected with the 40 percent rating. However, while the Veteran is competent to relate the symptoms he experiences and how his symptoms affect his daily life, he is not competent to opine on complex medical issues, such as the severity, degree, or etiology of medical conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, the degree of range of motion is measured with a goniometer, a medical tool, which is not readily replicated by a lay person. Thus, while the Veteran believes his lumbar spine disability to be worse than represented by the 40 percent rating during this period, the preponderance of the evidence of record supports his present evaluation. The Board acknowledges the Veteran's lay reports of symptoms, including stiffness, back spasms, and difficulty walking prolonged distances. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Here, despite the Veteran's complaints, pain did not result in ankylosis of the lumbar spine. The VA contract examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned ratings. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran's service-connected lumbar spine disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. The Board has considered the Court's holdings in Correia, and in Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, given the Veteran is receiving the maximum rating based on limitation of motion of the lumbar spine, and a higher rating requires unfavorable ankylosis of the entire lumbar spine, which is not present, there is no prejudice in any VA examination, during this period, that may have failed to comply with the requirements set forth in Correia and Sharp. In addition to considering the orthopedic manifestations of the lumbar spine, 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, the RO has already separately compensated peripheral neuropathy and radiculopathy of the right and left lower extremities associated with the Veteran's service-connected lumbar spine disability. The ratings assigned to those disabilities have not been appealed. Accordingly, those issues are not before the Board, and symptoms associated with those disabilities are not for consideration in the assignment of the rating for the low back disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Board notes that the Veteran reported bowel leakage and frequent urination in December 2009 and November 2010. However, since that time, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment as a result of his lumbar spine, and on examination, no neurological abnormalities affecting the lower extremities were noted. Thus, these appear to be isolated occurrences and there is no basis for additional separate neurological evaluations in consideration of the entire disability picture throughout the remainder of the appeal period. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for a lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU, prior to January 24, 2019, is denied. The Veteran contends that he is entitled to a TDIU because his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Board notes that a June 2021 rating decision awarded a TDIU, effective January 24, 2019. However, as this does not constitute a full grant of the benefit sought on appeal, this matter remains before the Board. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Prior to January 24, 2019, the Veteran was in receipt of a 40 percent rating for the lumbar spine disability; a 10 percent rating for tinnitus; a 10 percent rating for rhinitis; as well as noncompensable ratings for bilateral hearing loss and sinusitis. His total combined rating was 60 percent. Thus, he does not satisfy the percentage criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a), as he does not have one service-connected disability rated at 60 percent or more or, two or more service-connected disabilities with one rated at least 40 percent disabling and a combined rating of at least 70 percent disabling. 38 C.F.R. § 4.16(a). Even though the percentage requirements of 38 C.F.R. § 4.16(a) are not met, if the evidence establishes that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disability(ies), the case may be referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). Here, the RO did not refer this particular case for extra-schedular consideration, nor does the Board find that such referral is warranted. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In this regard, it is important for the Veteran to understand that if he did not have any problems with his service-connected conditions, there would be no basis for a compensable evaluation. With respect to the Veteran's education and work experience, the October 2019 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) reflects that he was last employed on a full-time basis in January 2013 as a mail carrier for the United States Postal Service. He indicated that he worked 45 hours per week for 32 years. The Veteran further stated that he retired early due to his low back disability. At the March 2015 Board hearing, he testified that he had been put on light work duty on a temporary basis, due to his back condition, prior to retirement. In March 2014, a VA examiner concluded that the Veteran's service-connected low back disability limited his ability to complete strenuous physical activity, but did not find that he was prohibited from sedentary occupations. Additionally, in December 2009, a VA examiner concluded that the impact of the low back disability on the Veteran's occupation was mild. Although the service-connected bilateral hearing loss was noted to impact the Veteran's ability to have conversations, none of the VA examiners indicated that the condition prohibited him from all types of employment. In October 2018, a VA examiner concluded that the service-connected sinusitis did not impact the Veteran's ability to work. Based upon the examination reports of record, that Board finds that, despite some limitations regarding physically demanding activities, the Veteran's service-connected disabilities did not prevent him from engaging in substantially gainful employment for the period prior to January 24, 2019. The Board acknowledges the Veteran's contentions that he was unable to work due to his service-connected lower back disability prior to January 24, 2019. However, the medical evidence of record does not reflect that he was incapable of sedentary employment during that period of time. Additionally, sedentary employment would have been suitable for his reported work and educational background. The Board notes that the Veteran completed sedentary tasks prior to his retirement when he was on light work duty as a postal worker. Thus, the record does not support the notion that the Veteran's service-connected disabilities preclude employment, nor do they establish the presence of any unusual or exceptional disability factors that suggest a reasonable possibility that he was unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities which would warrant referral of his claim under 38 C.F.R. § 4.16(b). Although the Veteran was not employed on a full-time basis during the period on appeal, the sole fact that he was unemployed or had difficulty obtaining employment is not sufficient. Van Hoose, 4 Vet. App. at 363. The medical evidence does not show that the Veteran is unemployable solely due to his service-connected disabilities prior to January 24, 2019. Thus, the Board does not find that referral for extra-schedular consideration is warranted. 38 C.F.R. § 4.16(b). As the Veteran fails to meet the criteria for a TDIU under either 38 C.F.R. § 4.16(a) or §4.16(b), the Board finds that the preponderance of the evidence is against the claim. Entitlement to a TDIU prior to January 24, 2019 must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.