Citation Nr: 21042774 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 08-28 595 DATE: July 13, 2021 ORDER Entitlement to an extraschedular rating for the Veteran's back disability is denied. Entitlement to a rating of total disability based upon individual unemployability (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disorder did not present an exceptional or unusual disability picture that would make impractical the application of the regular schedular standards. 2. The preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education, training, and experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to July 3, 2012 and/or in excess of 40 percent thereafter for chronic strain of the lumbosacral spine on an extraschedular basis have not been met. 38 C.F.R. § 3.321 (b)(1). 2. The criteria for entitlement to TDIU on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to July 1980 and October 1981 to June 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board and remanded for further development in June 2012, October 2014, December 2017, January 2020, and September 2020. Review of the record reveals that there has been substantial compliance with the remand directives and no further action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Extraschedular Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service - connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the Regional Office (RO) or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id.; see also 38 C.F.R. § 3.321 (b)(1). When the Board finds that an extraschedular rating may be warranted, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). 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). 1. Entitlement to an increased initial rating for service-connected lumbar spine disorder on an extraschedular basis. The issue to be decided by the Board in this appeal is whether the Veteran's low back disability meets the criteria for an increased rating on an extraschedular basis only. An October 2014 Board decision assigned a rating of 10 percent rating for the period on appeal prior to July 3, 2012 and a rating of 40 percent thereafter for the Veteran's service-connected lumbar spine disability. That same decision remanded the Veteran's low back claim and TDIU to the RO for extraschedular consideration. The RO referred the Veteran's claims on appeal to the Director of Compensation Service in October 2020. In response, the Director of Compensation Service rendered a January 2021 advisory opinion indicating denial of the Veteran's claim for an extraschedular rating. Relative to the Veteran's lumbar spine disability, the Director noted that there was no evidence that the current or previously assigned, or available schedular evaluations are inadequate due to exceptional or unusual circumstances. Further, the medical evidence showed symptomology that is consistent with the allowances of the Rating Schedule. Lastly, there was no evidence of frequent hospitalization or unusual disability patterns as to render the criteria of the current rating schedule impractical. As the issue has now been returned to the Board, the Board must consider on a de novo basis whether the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The Board finds that this case does not present such an exceptional or unusual disability picture. In this regard, the Board has carefully reviewed the medical and lay evidence of record. A November 2004 report of an MRI of the lumbar spine documents a finding of mild lumbar scoliosis and straightening of the normal lumbar lordosis. The report also indicates that disc degeneration, mild acquired central canal stenosis, bilateral foraminal stenosis secondary to disc bulging, and mild degenerative facet arthropathy were demonstrated. In a January 2005 letter, Dr. W.B. reported that the Veteran suffers from DDD and degenerative joint disease (DJD) of the lumbar spine and experiences severe pain in his back and legs. Also, with regard to the Veteran's legs, Dr. W.B. reported that the Veteran has been diagnosed with mild venous insufficiency with lymphedema, which most likely developed due to a December 2000 motor vehicle accident. A January 2005 note by Dr. W.B. documents a diagnosis of neuropathy of the bilateral upper extremities (arms) by way of neurophysiology studies. The clinician also cited to several previous studies that were negative for arthritic changes or other abnormalities. During an October 2005 examination, a VA clinician noted that radiographic studies showed DDD of the lumbar spine in addition to spondylosis, but that these conditions are less likely as not due to the Veteran's history of chronic lumbar strain, because the Veteran experienced traumatic injury to his lumbar spine due to his December 2000 motor vehicle accident and there is no medical literature to support a relationship between chronic lumbar spine strain and the development of spondylosis or DDD. The following ROM values were recorded during the October 2005 examination: forward flexion to 90 degrees on baseline with painful motion at 85 degrees upon repetitive use testing, extension to 25 degrees on baseline and after repetitive use testing, left lateral flexion to 30 degrees on baseline and after repetitive use testing, and bilateral lateral rotation to 30 degrees on baseline and after repetitive use testing. Physical examination revealed normal curvature of the spine and there was no evidence of muscle spasm, guarding of movement, weakness, fatigue, lack of endurance, or tenderness upon examination. Lasegue's test, which is an indicator of sciatic nerve involvement, was negative bilaterally. The Veteran demonstrated diffuse decreased sensory function that is associated with significant bilateral lower extremity edema, but the examiner noted that the sensory dysfunction did not fit a dermatomal pattern and was not consistent with radiculopathy. The October 2005 examiner noted the Veteran's report of flare-ups but could not comment on the degree to which his flare-ups affected his ROM, if at all, as it would have been speculative. The Veteran reported making infrequent use of a lumbar spine support brace and denied a history of falls, incapacitating episodes, that his disability has had an adverse effect on his activities of daily living, numbness, weakness, bladder complaints, and bowel complaints. He did report, however, that he experienced stiffness. The Veteran also reported that he was unemployed at the time and unable to maintain former employment. The report of an April 2008 VA examination indicates that imaging studies were negative for fracture or gross malalignment but showed mild disc space narrowing with endplate degenerative change and degenerative change involving the lower apophyseal joints. The report indicates that the Veteran had a history of chronic low back pain without radiation to the lower extremities and examination of the lumbar spine showed mild diffuse tenderness without paraspinal spasm. He was negative for ankylosis, was not unsteady, and did not use an assistive device. ROM testing showed flexion to 85 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 40 degrees. There was no objective evidence of pain on motion and no evidence of weakened movement, excessive fatigability, or incoordination. There was no evidence that these symptoms further limited the Veteran's ROM during flare-ups or after repetitive use. The Veteran's neurological examination, which included testing of sensory, motor, and deep tendon reflex testing, was normal. During another April 2008 examination, which was conducted to evaluate his esophagus and hernia, the Veteran reported that he left his job in 2001 due to health problems. During a March 2010 VA examination, the Veteran stated specifically that he is not working due to problems with his back, knees, diabetes, and left ankle. June 2008, June 2009, and November 2009 treatment records from non-VA facilities indicate that the Veteran demonstrated mild DDD and that his condition progressed slightly. The examining clinicians reported that neither spinal cord impingement, spinal canal compromise, nor significant foraminal compromise were shown by MRI. Notably, the June 2009 MRI report documents a clinician's impression that the Veteran's lumbar spine was "essentially normal" at that time. VA treatment records dated January 2012 document worsening back pain and the Veteran's report that he experiences pain with activity and forward bending. An MRI of the lumbar spine failed to reveal significant disc herniation but showed disc edema and desiccation. The reporting clinician documented an impression of very mild degenerative changes of the lumbar spine without significant associated spinal canal or neural foraminal narrowing. The report of the Veteran's July 2012 VA examination documents that imaging studies show arthritis of the lumbar spine. The examination report indicates that the Veteran did not report having flare-ups that affect the function of his lumbar spine. ROM testing revealed flexion to 80 degrees with objective evidence of painful motion at 30 degrees, extension to 15 degrees with no objective evidence of painful motion, right lateral flexion to 25 degrees with no objective evidence of painful motion, left lateral flexion to 25 degrees with no objective evidence of painful motion, right lateral rotation to 25 degrees with no objective evidence of painful motion, and left lateral rotation to 25 degrees with no objective evidence of painful motion. After repetitive use testing, the Veteran's ROM was unchanged with the exception that his flexion was limited to 75 degrees. In finding that the Veteran experienced functional loss or impairment, generally, the examiner noted that the Veteran demonstrated less movement than normal and pain on movement after repetitive use, but did not find weakness, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, instability, or disturbance of locomotion, among other findings. The examiner concluded that the Veteran did not demonstrate guarding or muscle spasm of the lumbar spine. Further examination revealed normal reflexes and sensory examination. A negative straight leg raising test indicates that the Veteran was negative for radiculopathy and the examiner reported that the Veteran did not have radicular pain or any other signs due to radiculopathy. Importantly, the examiner also reported that the Veteran does not have any other neurologic abnormalities or findings related to his lumbar spine disability, to include bowel and bladder problems. In addition, the Veteran was negative for IVDS of the lumbar spine and vertebral fracture. The July 2012 examiner noted that the Veteran's lumbar spine condition has not affected his ability to work. In a non-VA treatment record that appears to document a clinician's findings during a June 2013 evaluation, positive swelling, restricted ROM to forward flexion and extension, midline tenderness, and tenderness over the paralumbar musculature were noted. At a December 2013 Perry Point VA Medical Center (VAMC) Physical Therapy consultation the Veteran reported that a TENS Units was helpful in controlling his pain, but he was still unable to lie flat due to back pain and needed to sleep in a recliner. An August 2014 VA Primary Care Outpatient Note documented that the Veteran was walking three miles, three times per week. The Veteran was afforded an in-person VA Back Examination in March 2015. The diagnosis was degenerative arthritis and strain of the lumbar spine. The examination report indicates that the Veteran did not report having flare-ups that affect the function of his lumbar spine. ROM testing revealed flexion to 80 degrees with no objective evidence of painful motion, extension to 20 degrees with no objective evidence of painful motion, right lateral flexion to 25 degrees with no objective evidence of painful motion, left lateral flexion to 25 degrees with no objective evidence of painful motion, right lateral rotation to 25 degrees with no objective evidence of painful motion, and left lateral rotation to 25 degrees with no objective evidence of painful motion. After repetitive use testing, the Veteran's ROM was unchanged. Further examination revealed normal reflexes and sensory examination. A negative straight leg raising test indicates that the Veteran was negative for radiculopathy and the examiner reported that the Veteran did not have radicular pain or any other signs due to radiculopathy. Importantly, the examiner also reported that the Veteran does not have any other neurologic abnormalities or findings related to his lumbar spine disability, to include bowel and bladder problems. In addition, the Veteran was negative for IVDS of the lumbar spine and vertebral fracture. The examiner opined that the Veteran's back disability did not impact his ability to work. The Veteran was also afforded a VA Peripheral Nerves examination in March 2015. The Veteran denied and radiating pain to his lower extremities. The examiner indicated that the Veteran's neurological examination was normal was with no objective evidence of either radiculopathy or neuropathy. In an April 2017 Notice of Disagreement (NOD), the Veteran contended that his lumbar spine condition also caused temporary paralysis. A December 2017 lumbar spine MRI report from the Veteran's private treating orthopedist noted that the Veteran has a L5-S1 pars fracture. The Veteran's orthopedist noted that the risks outweighed the benefits of any type of surgical intervention. A March 2018 VA treatment note indicated that the Veteran was prescribed tramadol and ibuprofen for right lower extremity sciatica and was actively being managed for diabetes. An April 2018 Perry Point VA Medical Center (VAMC) Primary Care Nursing Note reported that the Veteran loved to walk and was striving to walk at least 30 minutes per day weather permitting. The Veteran was again examined by VA at in-person VA Back Examination in February 2019. The diagnosis was degenerative arthritis of the lumbar spine and chronic strain of the lumbosacral spine. The Veteran reported having flare-ups of his back that limited his activity including preventing him from completing chores, shoveling snow, raking his yard and other activities of daily living, increased his pain to a level 10 on a scale of 1 to 10, and made it unable for him to lay on a flat surface. ROM testing revealed flexion to 80 degrees with no objective evidence of painful motion, extension to 15 degrees with objective evidence of painful motion, right lateral flexion to 20 degrees with no objective evidence of painful motion, left lateral flexion to 20 degrees with no objective evidence of painful motion, right lateral rotation to 30 degrees with no objective evidence of painful motion, and left lateral rotation to 30 degrees with no objective evidence of painful motion. Significantly, the examiner noted that the Veteran's ROM was out of normal range because of suboptimal effort. The examiner noted that pain on extension did not cause functional loss. After repetitive use testing, the Veteran's ROM was unchanged. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited that Veteran's functional ability with repeated use over time or during flareups because there was a lack of supporting documentation in the file and they had not directly observed the Veteran under those conditions. The remainder of the examination was normal. No ankylosis, radiculopathy or IVDS was noted. The Veteran had normal strength, no muscle atrophy, and normal reflexes. The Veteran endorsed the constant use of a back brace. The examiner noted that the Veteran was unemployed due to a combination of other conditions that impact his ability to work such as the inability to sit for long hours or hold his neck up. The Veteran was afforded an additional in person VA examination in July 2019. The assigned diagnoses for his back disability were degenerative disc disease of the lumbar spine and degenerative joint disease of the lumbar spine. The Veteran reported flareups of his back which occurred when leaning over for long periods of time and resulted in worsening back pain. He described the functional loss due to his back disability as hard to lift heavy things. ROM testing revealed flexion to 90 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted pain on ROM testing which caused functional loss specifically identified as difficulty with heavy lifting. After repetitive use testing, the Veteran's ROM was unchanged. The examiner indicated that pain significantly limited that the Veteran's functional ability with repeated use over time as well as flareups. The examiner opined that in terms of ROM the Veteran's functionality would be reduced to flexion to 80 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 during painful flareups or as a result of pain due to repeated use over time. The remainder of the July 2019 examination was normal. No ankylosis, radiculopathy or IVDS was noted. The Veteran had normal strength, no muscle atrophy, and normal reflexes. The Veteran did not require any assistive devices or braces. The July 2019 examiner was asked by the Board to specifically address the Veteran's contention in an April 2017 NOD form that he experienced temporary paralysis from his back condition. The examiner noted that the Veteran's diagnoses of degenerative disc disease and degenerative joint disease which were objectively confirmed by an October 2018 Lumbar Spine MRI report, would not cause paralysis of his back. Further, the Veteran did not have a diagnosis of a radiculopathy or a history of a traumatic spinal cord injury could also account for such symptoms. The examiner opined that the Veteran's claims of temporary paralysis from his back condition was a grossly exaggerated magnification of his symptoms and neither true nor possible. The Veteran also submitted lay statements indicating that that his back pain is severe. The diagnostic codes in the rating schedule corresponding to disabilities of the back provide ratings on the basis of limitation of motion, ankylosis, and neurologic manifestations. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In light of the governing regulations and based on a thorough review of the evidence of record, the Board finds that the schedular rating criteria reasonably contemplate the Veteran's symptoms of his lumbar spine disorder. In pertinent part, the Veteran's VA and private evaluations and VA and private treatment records have shown symptoms of constant severe pain and limitation of motion. These symptoms are adequately contemplated by the regulations addressing additional functional loss due to the effects of pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, while the Veteran's lay statements of record indicate that he has had difficulty with prolonged sitting, standing, lying in a prone position, and walking and difficulty with physical activities such as lifting, such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as indicated above. As the Court of Appeals for Veterans Claims (Court) recently reiterated in Long v. Wilkie, "exceptionality [is] the touchstone" for extraschedular consideration, and "Thun's first step is satisfied only when a veteran presents symptoms that are truly unusual or exceptional." No. 16-1537, at *5 (Vet. App. Dec. 30, 2020). The Veteran's reported symptoms, as summarized above, are neither exceptional nor unusual. The Board finds that Diagnostic Code adequately contemplates his disability picture. Furthermore, the preponderance of the evidence is against a finding that his symptoms have resulted in marked interference in employment, frequent periods of hospitalization, or any other similar circumstances. The Board notes that additional discussion regarding the Veteran's unemployability is provided below. Again, the Veteran has not identified any exceptional or unusual disabling symptomatology related to his back. Thus, Thun's second step is not satisfied either. The Board has considered the Veteran's disability picture and the tools available under the VASRD and finds that there is no evidence of symptoms or impairment related to the Veteran's condition that is not contemplated by the available schedular tools used to rate his disability. Accordingly, the Board finds that the schedular rating criteria reasonably contemplates the Veteran's symptoms of his lumbar spine disorder, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Veteran's claim for increased ratings for his lumbar spine disorder on an extraschedular basis is denied. Extraschedular TDIU Total disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340 (a). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). However, an award of TDIU does require that the claimant show an inability to secure and follow substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16. Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Where the percentage requirements for schedular TDIU are not met, TDIU may nevertheless be assigned on an extra-schedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities; however, the Board is precluded from assigning extra-schedular TDIU in the first instance. 38 C.F.R. § 4.16 (b); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 2. Entitlement to a rating of total disability based upon individual unemployability (TDIU) on an extraschedular basis. As an initial matter, the Board finds that the Veteran did not meet the minimum schedular criteria for a TDIU at any time during the instant appeal. 38 C.F.R. § 4.16 (a). Prior to July 3, 2012, the Veteran was service connected for a lumbar spine disability (10 percent); left ankle degenerative joint disease (10 percent); right shoulder spur formation (0 percent); right third finger chip fracture with arthritis (0 percent); umbilical hernia (0 percent); hiatal hernia (0 percent), second degree burn scars bilateral forearms (0 percent), surgical scars left ankle (0 percent).with a total combined evaluation of 20 percent. From July 3, 2012, the Veteran's lumbar spine disability was increased t0 40 percent and his combined evaluation for compensation was 50 percent. Because the Veteran's combined rating did not meet the schedular criteria, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16 (b). It is the established policy of VA that all Veterans who are individually 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). An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16 (b). As discussed above, the Director of Compensation Service rendered a January 2021 advisory opinion denying the Veteran's claims for extraschedular ratings to include an extraschedular TDIU. In reaching that conclusion, the Director noted that on his October 2017 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran reported he has a high school education. Although he left the past employment information blank on the form, the Veteran indicated that he was last employed as a truck driver, he last worked full time on June 1, 2003 and became too disabled to work on June 15, 2006. The Director of Compensation Service also reviewed records received from the Social Security Administration which found the Veteran disabled as a result of both service connected and nonservice connected disabilities including degenerative disc disease, right knee pain with edema and limited gait, venous insufficiency, morbid obesity, and right shoulder pain. The Director found that the medical evidence supported a finding that the Veteran is able to lift or carry 20 pounds occasionally, 10 pounds frequently, stand or walk 2 hours in an 8 - hour day with occasional overhead lifting. Although the Veteran's service connected disabilities do cause some functional limitations, the preponderance of the evidence does not show that those same disabilities prohibit the Veteran from obtaining or maintaining substantial gainful employment. Accordingly, the Director of Compensation Service determined the overall evidence failed to support the contention that any of the Veteran's service- connected disabilities either singly or in combination precluded employment and entitlement to extraschedular TDIU benefits was not established. The Board has carefully reviewed the evidence of record as previously set forth and discussed. The Board finds that the record does not reflect that due to his service-connected low back disability, service connected left ankle disability, and other noncompensable service - connected disabilities the Veteran is unable to obtain and sustain substantially gainful employment. While he has not worked for a number of years, that fact, in and of itself, does not establish that his service - connected disabilities render him unemployable. Although he clearly has some occupational impairment due to his service-connected disabilities, that impairment is encompassed by the schedular ratings now assigned. While VA examiners have indicated that the Veteran's service connected disabilities may preclude employment requiring prolonged standing, walking, heavy lifting, or repetitive bending (i.e. physical employment), the record does not show or suggest that the service-connected disabilities are of such nature and severity as to prevent his participation in sedentary employment. In this context sedentary work is defined as work that requires sitting with occasional walking or standing up during the workday but does not require the Veteran to lift and carry anything in excess of 10 pounds. Rouse v. McDonough, No. 19-5699 (April 13, 2021). Notably, the Veteran has nonservice-connected diabetes, obesity, knee edema and venous insufficiency that cause significant impairment. However, the impact from any nonservice connected disabilities may not be considered in determining entitlement to a TDIU rating. The Board has considered the Veteran's statements of his limitations due to pain in support of this claim. However, the Board finds that the record contains several internal inconsistencies with the Veteran's lay statements and the contemporaneous medical evidence of record, and therefore, finds the Veteran's description of his limitations is not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (holding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Specifically, the Board notes that there is no evidence of complaints of or treatment for temporary back paralysis as contended by the Veteran in his April 2017 NOD. Further, the July 2019 VA examiner noted that the nature of the Veterans back disability medically precludes such a condition. The Board accords probative value to the examiner's medical opinion in this instance because it based not only medical training and expertise, but also on objective medical evidence indicated by an MRI report. The Board has considered the collective impact of the Veteran's service-connected disabilities and finds that they do not warrant a finding that he is entitled to TDIU on an extra-schedular basis. The critical question when evaluating whether TDIU is warranted is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Although the Veteran may not be able to return to employment he previously held as a truck driver, the evidence does not reflect he is precluded from performing the acts of other employment he is qualified for as a high school graduate. The Board emphasizes that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant entitlement to TDIU. The degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. See 38 C.F.R. §§ 4.1, 4.15 (2017). Based on the foregoing, the preponderance of the evidence is against a finding that Veteran's service-connected disabilities, standing alone, preclude him from obtaining or maintaining substantially gainful employment consistent with his education and experience. He is capable of working in a position that involves sedentary work. Accordingly, entitlement to TDIU on an extra-schedular basis, is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.