Citation Nr: 21009772 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 07-07 202 DATE: February 23, 2021 ORDER Entitlement to a rating in excess of 10 percent for low back disability prior to December 14, 2010 is denied. Entitlement to a rating in excess of 20 percent for low back disability from December 14, 2010 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to December 14, 2010, the Veteran’s low back disability was not manifested by limitation of flexion of the spine to less than 60 degrees. 2. For the period from December 14, 2010, the Veteran’s lumbar spine disability was manifested by pain and limitation of motion, without limitation of forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. There are no associated neurological symptoms. 3. During the appeal period, the Veteran’s service-connected disabilities did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against a finding that his service-connected disabilities were of such nature and severity to preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to December 14, 2010, the criteria for entitlement to a rating in excess of 10 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. Since December 14, 2010, the criteria for entitlement to a rating in excess of 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on multiple tours of active duty, to include from February 1994 to May 1994, from April 1996 to August 1996, and from October 1999 to October 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran’s claim has been before the Board on multiple previous occasions. After appealing the November 2005 rating decision to the Board, the Board remanded the Veteran’s claims in November 2010 for further evidentiary development. After the development was completed, the Board issued a March 2013 decision denying the Veteran’s claims for entitlement to increased rating and a TDIU. The Veteran subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court). During the pendency of this appeal, both parties agreed to remand the claims back to the Board based on inadequate evidence and memorialized this effort in a Joint Motion for Remand (JMR). The Court also memorialized the JMR in its November 2013 order. Following the Court’s remand, the Board then remanded the Veteran’s claims in May 2014, April 2016, April 2018, and February 2020, until it was presently returned. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered because of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residuals conditions in civilian occupations. See 38 U.S.C. § 1155; see also 38 C.F.R. § 4.1. 1. Entitlement to a rating in excess of 10 percent prior to December 14, 2010 for low back disability is denied. By way of history, the Veteran filed for service connection for a lumbar strain disability in May 2005. In November 2005, the AOJ issued a rating decision granting service connection with a disability rating of 10 percent, effective October 15, 2004. The Veteran filed a timely notice of disagreement (NOD) and appealed the initial rating to the Board. During the pendency of the appeal, the AOJ issued a rating decision in December 2011 which increased the Veteran’s disability rating for his lumbar spine disability to 20 percent, effective December 14, 2010. As a higher rating is available for the Veteran’s low back disability both before and after December 14, 2010, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim is still considered to be on appeal both before and after December 14, 2010. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Back disabilities may be evaluated under either of two general rating formulas. One applies to intervertebral disc syndrome (IVDS) and is based upon the duration of incapacitating episodes. The other consists of the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine does not provide for a noncompensable evaluation. The lowest available evaluation is 10 percent, which is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or there is muscle spasm, guarding, 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 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 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are 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 when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; and a 40 percent rating is warranted when there are 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 when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as 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). Evidence relevant to the level of severity of the Veteran’s low back disability during this period on appeal includes VA treatment records, private treatment records, and a VA examination. VA treatment records for this period on appeal reflect persistent complaints of pain, specifically in the lumbar spine area, that was chronic. See e.g., November 9, 2004 note; January 24, 2005 note; February 16, 2005 note. The Veteran was afforded a VA general medical examination in May 2005. During the examination, the Veteran reported chronic low back pain. The Veteran reported that his back pain began after a low back injury he sustained in February 2003 when he slipped on ice at his Airforce Base during active service. The Veteran reported that his back was x-rayed at the time of the injury, and that he sought treatment from a private treatment provider who referred him to a chiropractor for his pain. Upon physical examination and range of motion testing, the Veteran was able to perform lumbar spine flexion to 90 degrees, with pain beginning at 70 degrees; lumbar spine extension to 35 degrees with pain; and pain during both lateral rotations. The Veteran submitted private treatment records from October 2004, which included an MRI of the Veteran’s lumbar spine. The private treatment provider indicated that the study showed “normal alignment” of the spine. The private treatment provider indicated that the MRI showed “desiccation with decreased signal intensity of L4-L5 disc space, with mild posterior disc bulging versus mild disc protrusion with compression of the anterior thecal sac.” The Veteran was then afforded a VA examination for the spine in December 2006. During the examination, the Veteran reported constant, sharp pain in his low back rated at “an 8/10”, that radiates down to his buttocks. The Veteran reported experiencing flare-ups of his low back pain, describing them as a “sharp stabbing pain, rated at 10/10” when lifting something, indicating the flares normally would last for an hour. The Veteran also reported that he had to go to the emergency room about four times in the past year for his low back pain, primarily to get stronger pain medications because of the intensity and severity of the pain. The Veteran indicated precipitating factors of his low back disability include sitting down, standing, bending, and lifting. The Veteran noted alleviating factors for his chronic low back pain include a hot or cold pad, TENS unit, and laying in the bathtub with warm water. The Veteran reported that during a flare-up, his low back gets stiff, and he experiences a loss of flexion (from 0 to 75 degrees), and that he has to lay down in bed. Upon functional assessment, the VA examiner indicated that the Veteran’s low back disability impacts the Veteran’s mobility, activities of daily living, and ability to perform his occupation. Upon physical examination, the VA examiner noted normal alignment, symmetry and curvature of the spine; steady gait and normal posture; and normal symmetry and rhythm of spinal motion. Upon range of motion testing, the Veteran’s lumbar spine flexion was limited to 75 degrees with pain; lumbar spine extension was limited to 30 degrees with pain; and the Veteran’s lumbar spine lateral bend and rotation were not limited but both experienced pain. The VA examiner noted tenderness over the lumbar spine but indicated that there was no ankylosis or other abnormalities. A March 2009 VA treatment record reflects that the Veteran attended a pain medicine clinic evaluation for his chronic low back pain. The VA treatment provider indicated that his low back pain is made worse with lifting but improves with a hot bath and the use of the TENS unit. The VA treatment provider also noted that the Veteran had a x-ray of his lumbar spine completed in January 2009 which reflected mild degenerative disc disease at L4-L5 with no compression or subluxation. On physical examination during the evaluation, the Veteran’s range of motion was described as follows: “[f]rom a standing, neutral position [the Veteran] was able to flex forward 80 degrees and extend back 20 degrees.” See March 13, 2009 VA pain medicine note. For the period prior to December 14, 2010, the Board finds that a disability rating greater than 10 percent is not warranted because there is no medical evidence of limitation of forward flexion to 60 degrees or less. As above, the May 2005 VA general examination showed forward flexion to 70 degrees, the December 2006 VA spine examination showed forward flexion of 75 degrees, and the March 2009 VA treatment record showed limitation of forward flexion to 80 degrees. While the Veteran has contended that he experiences flare-ups during the appeal period, and, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered, there is no indication that the Veteran's flare-ups result in additional loss of motion. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) will be expanded and it is found that flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Many of the Board’s remands specifically directed VA examiners to opine regarding any additional functional loss or loss of range of motion during this period on appeal (prior to December 14, 2010). However, the weight of VA examiners of record have attempted to provide an opinion but were unable to do so in a quantifiable manner without resorting to speculation. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. In denying higher ratings for the Veteran's low back disability, the Board has considered the Veteran's statements that his back disability is worse, as well as his report of flare-ups of pain, and inability to walk or stand for prolonged periods. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran's back disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and limitation of function. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion such as to enable a finding that the disability picture more nearly approximates the next-higher, 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also contemplated whether any separate evaluations are applicable here for additional disability associated with the service-connected back disability. However, the Board notes that the Veteran is currently in receipt of a separate rating for his radiculopathy of the bilateral lower extremities, as of the first evidence of a diagnosis during the appeal which was during the period on appeal following December 14, 2010. Furthermore, there is no evidence of associated bowel or bladder disability prior to December 14, 2010. As such, no additional separate evaluations are warranted for the Veteran's lumbar spine disability. 2. Entitlement to a rating in excess of 20 percent from December 14, 2010 for low back disability is denied. As mentioned above, the Veteran’s service-connected low back disability is currently rated at 20 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), Diagnostic Code 5237. See 38 C.F.R. § 4.71a, DC 5237. He seeks a higher rating for the period from December 14, 2010 onward. Under this formula, 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. Id. These ratings 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. Id. The General Formula also provides further guidance in rating diseases or injuries of the spine in several subsequent notes. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a. The Board notes that probative evidence of record does not document any associated objective neurologic abnormalities for the period on appeal. Upon review of the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a disability rating greater than 20 percent for his lumbar spine disability since December 14, 2010. The Veteran was afforded a VA examination in December 2010. During the examination, the Veteran reported that the severity of his lumbar spine disability had increased and that it was now preventing him from getting a job because he cannot perform the physical requirements. The VA examiner stated “[t]he Veteran’s current symptoms regarding his low back are such that he does use two hydrocodone a day, naproxen, and the muscle relaxant, and the TENS unit to his low back two hours a day. Pain is in the mid-lumbar area and does not radiate. He does have a back brace at home, but he does not remember when he last used it, but states that ‘I use it when I need it.’ He does not use a cane.” The Veteran described his back pain as “constant” and indicated that it increases with any “strenuous activity”, which the Veteran categorized as lifting anything over a full gallon of milk or when he does any bending. The Veteran reported he thinks he can walk “about a mile” but is not really sure and stated that there is increased low back pain when he stands for longer than two hours or if he sites for more than 45 minutes. Upon physical examination, the VA examiner noted that the Veteran walks normally with no limp, can remove his shoes and socks without difficulty, and is able to walk normally on his heels and toes, evidencing good balance and muscle coordination and strength. Upon range of motion testing, the VA examiner indicated that the Veteran’s lumbar spine is limited to 60 degrees of flexion, 20 degrees of extension, 25 degrees of right and left lateral bend, and 30 degrees of right and left rotation. The VA examiner also noted that “[t]he Veteran does not voice any complaints of pain, fatigability, weakness, lack of endurance, or incoordination.” In accordance with the May 2014 Board remand, the Veteran was afforded a new VA examination for his lumbar spine in June 2014. During this examination, the Veteran reported progressive, persistent pain and increase flare-ups of his low back occurring roughly four to six times per month. The Veteran described this pain as a “dull ache, irritating, and sometimes sharp.” The Veteran reported aggravating factors of his low back disability include running more than a quarter of a mile, picking up a 25 lb child repetitively, or having to use aggressive resistance at work. The Veteran reported he works full-time as a law enforcement officer, but predominantly writes speeding tickets. The Veteran reported he can do his job without limitations unless he is experiencing a flare-up. Upon range of motion testing, the Veteran’s lumbar spine flexion was measured to 90 degrees, with painful motion beginning at 80 degrees; his lumbar spine extension measured 30 degrees, with painful motion beginning at 15 degrees; right and left lateral flexion to 30 degrees with evidence of painful motion; and right and left lateral rotation to 30 degrees with no evidence of painful motion. The Veteran did not exhibit additional limitation in range of motion following repetitive use testing. The VA examiner indicated that the Veteran did not have muscle spasms of the lumbar spine, but that the Veteran did exhibit guarding of the lumbar spine not resulting in abnormal gait or abnormal spinal contour. The VA examiner noted that the Veteran did not have radicular pain or any signs or symptoms due to radiculopathy, or any other neurologic abnormalities. The VA examiner also indicated that the Veteran’s lumbar spine had no evidence of ankylosis at the time of the examination. The VA examiner noted that the Veteran did not have IVDS of the lumbar spine. The Veteran was afforded another VA examination in May 2016. During the May 2016 VA examination, the Veteran reported gradually increased low back pain related to physical activities since his last VA examination. The Veteran rated the discomfort as ranging from a 4/10 to a 10/10 with relief from rest, positioning, hot bath, and medication. The Veteran also reported some left leg radiating pain with physical overuse, that is relieved by stopping the aggravating activity and rest with ice application. The Veteran reported that he limits stationary sitting or standing to less than a few hours, and that he is able to walk without specific limitations related to his low back condition although he cannot navigate uneven terrain or run due to the increased back pain. The Veteran also reported that he limits repetitive bending, twisting, or leaning movements, and limits lifting or carrying to 5 to 10 lbs. The Veteran did not report experiencing flare-ups of his low back disability during this examination. Upon range of motion testing, the Veteran’s lumbar spine range of motion was found to be normal, with forward flexion limited to 90 degrees; extension to 30 degrees; and bilateral lateral flexion and rotation all to 30 degrees. The VA examiner indicated that pain was noted during the testing but did not result in or cause functional loss. The VA examiner also noted that there is objective evidence of localized tenderness or pain on palpation of the spine, specifically in the L4-L5 area. The VA examiner indicated that the Veteran did not have guarding, muscle spasms, or ankylosis of the lumbar spine. The VA examiner also noted no neurologic abnormalities related to the Veteran’s low back disability. The VA examiner indicated that the Veteran did not have IVDS of the lumbar spine. The Veteran was again afforded a VA examination in October 2018 in accordance with a Board remand. At this time, the Veteran reported that his low back pain ranges from a 6/10 to a 10/10 constantly (daily). The Veteran reported he is currently taking Oxycodone and Naproxen for his pain. The Veteran reported flare-ups of his lumbar spine. The Veteran also indicated that he has difficulty walking and standing for long periods of time, has a hard time running or climbing stairs, and has difficulty with lifting or bending. Upon range of motion testing, the Veteran’s lumbar spine forward flexion was limited to 55 degrees; extension limited to 30 degrees; bilateral lateral flexion limited to 30 degrees; and bilateral lateral rotation limited to 25 degrees. The VA examiner indicated that the Veteran exhibited pain on all ranges of motion. The VA examiner also noted that pain, weakness, lack of endurance, and incoordination all significantly limit the Veteran’s functional ability with repeated use over time, as well as during flare-ups. The VA examiner indicated that despite the Veteran’s well-described symptoms regarding his flare-ups, the VA examiner was unable to objectively quantitate symptom or range of motion changes with repetitive use over time. The VA examiner indicated that the Veteran did not have guarding or muscle spasm of the lumbar spine. The VA examiner noted that the Veteran has radicular pain and symptoms due to radiculopathy, specifically, moderate paresthesias and/or dysesthesias in the bilateral lower extremities. The VA examiner noted that the Veteran had no other neurologic abnormalities associated with his low back disability. The VA examiner denied that the Veteran has ankylosis or the lumbar spine. Most recently, the Veteran underwent a VA examination for his lumbar spine disability in October 2020. Regarding current symptoms, the Veteran reported that he has pain in his low back that is aggravated by any repetitive activities, such as lifting, bending, or driving. The Veteran reported flare-ups of his lumbar spine disability, stating “[i]f I do anything too much, my back flares up and I can’t get out of bed for a while. If I bend too long or for too much, I have a hard time getting back up straight again. I have a hard time sometimes putting on my shoes. As you can see, I wear these slip-on shoes and no socks because it’s hard for me to bend down.” Upon range of motion testing, the VA examiner indicated that the Veteran’s lumbar spine forward flexion was limited to 65 degrees; lumbar spine extension was limited to 20 degrees; lateral flexion limited to 30 degrees; and lateral rotation limited to 30 degrees. The VA examiner indicated that the range of motion itself contributes to a functional loss, noting that the Veteran had difficulty reaching for his shoes on the floor. Additionally, the VA examiner noted that pain was noted on the examination and causes functional loss, specifically, on forward flexion and extension. The VA examiner also noted that the is objective evidence of localized tenderness or pain on palpation of the spine, located at the midline and classified as moderately severe. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after repetitions. The VA examiner indicated that during both repetitive use and flare-ups, pain significantly limits the Veteran’s functional ability, and further limits his range of motion to 60 degrees of forward flexion and 20 degrees of extension. The VA examiner reported that the Veteran did not have guarding or muscle spasms of the lumbar spine. The VA examiner also noted no ankylosis of the lumbar spine. No other neurologic abnormalities were noted related to the Veteran’s back condition. The VA examiner also determined that the Veteran does not have IVDS of the lumbar spine. For the rating period from December 14, 2010 forward, the Board finds that the weight of the evidence is against a disability rating of more than 20 percent for the Veteran's service-connected lumbar spine disability. The Board finds, with consideration of the functional limitations due to pain, the disability most closely approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, but does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, or unfavorable ankylosis of the thoracolumbar spine. Although there is pain with some ranges of motion, the spine is not shown to be in fixation, and the Veteran is not shown to exhibit other factors associated with ankylosis. All VA examinations during this period on appeal show that there is no ankylosis of the thoracolumbar spine. The VA examination reports of record shows that the Veteran's forward flexion was, at worst, limited to 55 degrees following December 14, 2010. Therefore, the Board finds that, even with consideration of any functional loss due to pain, the Veteran's lumbar spine disability did not more closely approximate favorable ankylosis of the thoracolumbar spine or forward flexion less than 30 degrees since December 14, 2010, and therefore, does not approximate a rating higher than 20 percent under DC 5237. While the General Formula allows for additional ratings for associated neurological impairment due to the back disability, the medical evidence in this case does not support any such impairment. The examination found no neurological issues such as radiculopathy, bladder, or bowel impairment. Sensory and straight leg raise testing was normal. In short, while the Board is sympathetic to the Veteran's statements regarding his pain as a result of his low back disability, in keeping with the General Formula, the Veteran's assigned ratings are appropriate and his claim for an increased rating must be denied. TDIU 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. A review of the record shows that the Veteran claims he has been unemployed since October 2010. The Veteran asserts he was last employed as a law enforcement officer serving in a local police department. Total disability ratings for compensation based on individual unemployability 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. After reviewing the evidence of record, the Board has determined that the preponderance of the evidence is against the Veteran's claim for entitlement to a TDIU, to include on an extraschedular basis. Initially, the Board notes that the Veteran is currently service-connected for chronic lumbar strain with degenerative disc disease, rating 10 percent disabling from October 15, 2004 to December 14, 2010, and rated 20 percent disabling thereafter; and radiculopathy of the bilateral lower extremities, rated 20 percent disabling from October 25, 2018. The Veteran’s combined disability rating therefore combines to 10 percent from October 15, 2004, 20 percent from December 14, 2010, and currently 50 percent from October 25, 2018. Thus, the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) are not met. Nonetheless, in exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may be assigned, on an extraschedular basis upon a showing that the individual is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is "whether a veteran's service-connected disability alone is of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran's education, special training, and previous work experience, but not his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Considering the pertinent evidence in light of the above, the Board finds that the criteria for a TDIU are not met. The Veteran first asserted in his substantive appeal that “[d]ue to my [back] injury, it is stopping me from getting jobs because of the physical requirements that I can’t pass because of my injury.” See March 8, 2007 VA Form 9. During the December 2010 VA examination for his lumbar spine, the Veteran reported that he was unemployed and could not work full-time because he cannot pass a physical fitness test that requires him to lift weights and run. The Veteran also indicated that he has not found a treatment provider who will give him a medical clearance for his condition. The Veteran reported that he last worked part-time in October 2010 as security at a racetrack. He stated that he stopped working because the racetrack shut down. The Veteran reported he has done part-time work in similar capacity, involving roughly two days per month, from January to October 2010 (as well as previously in 2008 and 2009). Regarding when the Veteran last worked full-time, the Veteran reported that he worked as a police officer for a city police department from 2006 to 2008, and then for a different police department from 2008 to 2009. The Veteran submitted a lay statement in December 2010 further detailing why he believes he is entitled to a TDIU. The Veteran stated he “cannot gain substantial gainful employment because of my physical injury from the military.” Further, the Veteran reported that “I work for small towns that pay $9 or $10 per hour because they do not care about physical fitness. They just want someone to be seen. The good departments that pay $22 per hour and up will not hire if you have a back problem. I have to take meds at all times and always have problems with everyday life due to my back injury.” The Veteran also submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability) in December 2010. Aside from the employment history detailed above, the Veteran indicated that he did not leave his last job because of his disability. Regarding education, the Veteran reported he had a high school diploma and completed two years of college but has no other education or specialized training. VA treatment records reflect that at some point following this application, the Veteran obtained another position as a law enforcement officer until October 2015. See November 20, 2015 VA social work assessment note. During the October 2018 VA spine examination, the VA examiner noted that the Veteran was diagnosed with leukemia in 2015 (which is not service-connected) and has been on medical leave from his job as a law enforcement for two years following his diagnosis. The October 2018 VA examiner also indicated that due to the Veteran’s service-connected low back disability, he has difficulties with prolonged walking and standing. The Veteran was afforded a general medical examination for VA in March 2019 for pension purposes. During this examination, the VA examiner noted that the Veteran was currently employed full-time in security, where his details include driving a truck and delivering items. The VA examiner also stated the regarding his service-connected back condition, the Veteran would likely be better suited to a less physically demanding work, with accommodations that would allow the Veteran to alternate periods of sitting and moving about. Social Security records reflect that the Veteran receives SSI disability benefits for his non-service-connected leukemia condition. After a thorough review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities did not render him unable to perform the mental or physical tasks necessary to follow a substantially gainful occupation throughout the appeal period. As such, TDIU is not warranted. The Board has considered whether the Veteran's claim should be referred to the Director of Compensation Services for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). When there is plausible evidence that a veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, a veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director. In this case, the criteria for referral have not been met as the preponderance of the evidence is against the Veteran’s claim for a TDIU on an extraschedular basis. As discussed above, there is no probative evidence that his service-connected disabilities have rendered him unemployable. The Board does not dispute that the Veteran experienced some occupational impairment due to his service-connected disabilities during the relevant time periods on appeal. Evidence shows complaints of physical limitations resulting from his service-connected lumbar spine disability. However, the Board finds that such impairment was adequately compensated by the assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board has considered entitlement to a TDIU based only upon the Veteran's disabilities that were service-connected and finds that although they may have impacted his ability to obtain and maintain employment (as shown by gaps in his employment history), they did not prevent him from securing or following gainful employment. The Veteran has completed high school and two years of college. Traditionally, he has worked in a law enforcement or security setting. While a heavy physical labor position would be precluded, given the Veteran's education and experience, he is qualified for a position that is less physically demanding. His service-connected disabilities would not preclude this type of employment. In addition, such a position would provide income above the poverty level. As the evidence fails to establish that the Veteran's service-connected disabilities preclude substantially gainful employment, the criteria for a TDIU rating, to include on an extra-schedular basis, are not met, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for a TDIU, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.