Citation Nr: 0005513 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-09 847A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for low back disability, currently evaluated as 60 percent disabling. 2. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Associate Counsel INTRODUCTION The veteran had active military service from July 1954 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) from a May 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was remanded by the Board in December 1997 for further development; it was returned to the Board in August 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected low back disability is productive of pronounced intervertebral disc syndrome with little intermittent relief, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. 3. The veteran is 63 years of age, has attended one year of college and completed training in small engine repair, and has been employed on a full-time basis in a clerical position since October 1993. 4. The veteran's service-connected low back disability does not preclude him from securing or following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The veteran's low back disability warrants a 60 percent evaluation. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5293 (1999). 2. The criteria for a total rating based on unemployability due to service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In this regard the Board notes that the Board's December 1997 remand requested that the RO attempt to obtain a copy of a 1993 electromyograph (EMG) examination report. The record reflects that the RO thereafter requested a copy of the report, but was only able to obtain a copy of a June 1993 VA EMG clinic note which documented the findings of the referenced EMG report. In light of the RO's efforts to obtain a copy of the requested report, and since the contents of the report are, in any event, recorded in the June 1993 treatment note on file, the Board concludes that further delay of the appellate process for the purpose of again attempting to obtain a copy of the 1993 EMG report is not warranted. The Board also notes that the veteran, in January 1998, indicated that he had been treated since 1993 by Dr. Kenneth W. Gibson, a primary care physician, but that the RO has not attempted to obtain records from that physician. The Board notes, however, that the veteran has not specifically alleged treatment by that physician for his low back disability. Moreover, the veteran has not alleged, and there is no indication, that VA is in a better position to obtain records from Dr. Gibson than the veteran. The Board therefore concludes that further delay of the appellate process for the purpose of obtaining records from the aforementioned physician is not warranted. I. Low back disability In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). As noted in the Introduction, the veteran's service ended in July 1958. Service connection was granted for low back disability in September 1958, evaluated as noncompensably disabling. In March 1985, the evaluation assigned the veteran's disability was increased to 10 percent disabling, and in December 1985 the evaluation assigned the veteran's low back disability was increased to 20 percent disabling. In May 1990, VA increased the evaluation assigned the disability to 40 percent disabling, and in September 1990 the disability was evaluated as 100 percent disabling for the period from July 31, 1990, to October 31, 1990, and evaluated as 40 percent disabling for the period from November 1, 1990. In November 1994, the rating assigned the veteran's low back disability was increased to 60 percent disabling; the 60 percent evaluation has remained in effect since that time. On file is an August 1985 medical report by Donald J. Worth, D.O. Dr. Worth's report describes various physical findings associated with the veteran's low back disability, and Dr. Worth concluded that the veteran was, at that time, unable to maintain gainful employment with respect to any employment involving prolonged standing, lifting or sitting. VA treatment reports for February 1989 to August 1993 document complaints of low back pain radiating to the buttocks and lower extremities, exacerbated by bending and lifting activities. The veteran also reported experiencing some toe numbness. He denied any bowel or bladder difficulties. The treatment records show that the veteran was evaluated in 1989 for neurological complaints, but that no evidence of nerve root impingement was identified; no follow up was indicated. In August 1990, the veteran underwent a lumbar laminectomy with diskectomy involving L2, L3, L4 and L5. Thereafter, on physical examination, the veteran exhibited tenderness of the paraspinous muscles, as well as left paravertebral muscle spasm. There was mild weakness in the left foot, quads and hamstrings, as well as some sensory decrease, but deep tendon reflexes were 2+, and motor strength was 5/5. He was able to walk well on his heels and toes. On range of lumbar motion testing, the veteran exhibited flexion to 30 degrees and extension to 0 degrees; his motion was limited by pain and the pain was described as limiting his ability to perform daily activities and his usual work. Dynamic motion and X-ray studies showed mild retrolisthesis of L2 over L3 and L3 over L4, following which the veteran received facet injections with some relief. EMG and nerve conduction studies in June 1993 purportedly showed findings consistent with a chronic neurogenic process affecting L4-L5 and S1 on the left. The veteran was diagnosed with, inter alia, muscular back strain, spondylolisthesis, segmental lumbar spinal instability at L2, L3 and L4, degenerative disk disease and radiculopathy. In several statements on file, the veteran reported experiencing muscle spasms, radiating pain and numbness of his toes. He also reported experiencing pain with walking, and indicated that his legs occasionally stopped functioning because of his low back disability; he reported that his physicians had imposed lifting, bending and sitting limitations. The veteran indicated that his August 1990 surgery rendered him unable to work, and that it even interfered with his ability to attend his small engine repair business; he was informed by his physicians that his line of work was detrimental to his physical condition. The veteran also stated that he had been unable to obtain employment because potential employers were precluded by insurance companies from hiring applicants with back problems. In support, he noted that the United States Postal Service (U.S.P.S.) recently refused to hire him because of his low back disability. Of record is a transcript of an April 1990 hearing before a hearing officer at the RO. At that time, the veteran complained of pain radiating to his lower extremities, as well as incoordination. He also stated that he experienced problems with bending and with walking and traversing stairs. He testified that he was last employed in 1988, and that his employment was terminated because the position involved bending and lifting, which affected his low back. The veteran indicated that he was thereafter refused employment because of his low back disability, and that he was told by his treating physician that he was unemployable due to his low back disability. On file are VA vocational rehabilitation records for the veteran which indicate that the veteran's course of vocational rehabilitation was discontinued in June 1990 due to medical problems. The veteran reapplied in April 1993 for vocational rehabilitation benefits, at which time he reported that he had been employed on a part-time basis for 1 to 3 years, and that his household earned between $8,000 and $12,000 each year. He reported that he experienced functional restrictions and that employers refused to hire persons who underwent back surgery and still exhibited low back problems. A June 1993 counseling narrative documents the veteran's statement that he only sought a counseling session because he had recently received a motivation letter; he stated that he was not actually interested in a training program. The veteran reported working on a part-time basis as a dispatcher for an electric company after ceasing employment as a small engine repairman following surgery. The veteran averred that his low back disability nevertheless interfered with his current work. He reported that he was able to drive and walk up to two miles each day. The counseling psychologist concluded that the veteran exhibited some functional restrictions secondary to his low back disability. On file are records from the Social Security Administration (SSA) which indicate that the veteran's claim for disability benefits from that agency was most recently denied in November 1990. The SSA listed the veteran's primary disability as status post lumbar laminectomy. Treatment records prior to 1989 associated with the SSA records are mainly concerned with the veteran's nonservice-connected disabilities, although they record that he reported trouble obtaining employment because of his back disability. Treatment records from 1989 are duplicative of VA records discussed previously. The SSA records indicate that the veteran's exertional limitations included lifting or carrying no more than 50 pounds on an occasional basis or 25 pounds on a frequent basis, and no more than 6 hours of standing, walking or sitting. The veteran was afforded a VA examination in March 1991, at which time physical examination disclosed that his carriage, posture and gait were within normal limits; he was noted to wear a back brace. The veteran exhibited a very limited range of lumbar motion secondary to pain, and was unable to perform a heel or toe stance. Deep tendon reflexes were present and symmetrical at 1+. The muscular development in the lower extremities was symmetrical, although the examiner did not assess muscle strength. The examiner's final assessment was that the veteran complained of pain in the low back area with neuropathy at times radiating into both lower extremities. On file is the report of a November 1991 examination of the veteran by Ronald M. Forristall, M.D. Dr. Forristall noted that the veteran's primary complaint involved increasing pain with mechanical instability symptoms. Physical examination showed the presence of good paraspinous muscle tone. The inferior aspect of the L2 spinous process was very prominent, and the veteran exhibited minimal discomfort on forward flexion, with moderate to severe pain on extension. Deep tendon reflexes were 2+ and equal, with no motor or sensory deficits present in the lower extremities. The veteran denied any bowel or bladder complaints. X-ray studies purportedly showed significant retrolisthesis of L2 on L3, with significant instability at L3-L4. The veteran was diagnosed with segmental instability of the lumbar spine at L2-L3 and L3-L4. On VA examination in July 1992, the veteran complained of low back and bilateral lower extremity pain. Physical examination disclosed the presence of decreased lumbar lordosis, and the musculature of the back was described as tight and tender. On range of lumbar motion testing, the veteran exhibited forward flexion to 30 degrees, backward extension to 0 degrees, lateral flexion to 15 degrees, bilaterally, rotation to the left to 30 degrees, and rotation to the right to 15 degrees. The veteran's deep tendon reflexes were 2+ and symmetric, and no evidence of neurological involvement was identified. A Magnetic Resonance Imaging (MRI) study showed the presence of lumbar spondylosis of L2-L3 with narrowing and severe posterior bulging. The veteran was diagnosed with severe low back pain syndrome, spondylolisthesis and severe lumbar degenerative disc disease. On file is an October 1992 statement by a VA physician indicating that the veteran had diffuse degenerative changes throughout the lumbar spine, most severe at the L2-L3 level. The physician noted that there was no particularly obvious explanation for his reported lower extremity pain on the basis of nerve root impingement, and he recommended conservative treatment of the veteran's low back disability. In an October 1992 statement, a physician for U.S.P.S. indicated that he had reviewed the veteran's medical history and had examined the veteran, but concluded that the veteran was not medically qualified to perform the essential functions of the position of rural carrier for that agency. He indicated that the veteran presented on physical examination with weak and poorly conditioned leg, abdominal and back muscles, and with markedly limited range of back motion secondary to pain. He noted that the arduous work requirements for a rural carrier, which involved lifting, bending, twisting, stretching, reaching, standing, sitting and jostling, would place great stress on the veteran's low back disability. In an October 1992 letter, U.S.P.S. notified the veteran that that agency considered him to be medically unable to perform the position of rural carrier associate, specifically noting that the veteran's low back problems were not compatible with the requirements of the position. In a November 1992 decision, the Office of Personnel Management sustained the U.S.P.S. decision. In a November 1992 letter, Dr. Forristall indicated that he had reviewed VA's rating criteria for intervertebral disc syndrome. He explained that he had reevaluated the veteran earlier in November 1992, at which time the veteran demonstrated loss of lumbar motion, as well as positive straight leg raising and weakness in heel walking. Dr. Forristall opined that the findings noted on physical examination represented neurologic findings consistent with a bilateral L5 nerve root involvement. He additionally opined that the veteran's complaints of daily pain suggested that he experienced little intermittent relief from his symptoms, and he concluded that the veteran's symptoms were compatible with a 60 percent rating under VA's rating criteria. Of record is the report of a December 1992 VA examination of the veteran, at which time he complained of low back pain which had impeded his ability to work. He noted that the pain was constant and aggravated by increased physical activity. Physical examination disclosed the presence of decreased range of spine motion. Lower extremity strength was 4/5, and the veteran's leg muscle mass was equal, bilaterally. Deep tendon reflexes were 2+ bilaterally, and pinprick sensation was bilaterally equal, although the veteran reported diminished sensation to light touch in the left calf area. No postural abnormalities, fixed deformity, or abnormalities in the musculature of the veteran's back were identified. On range of lumbar motion testing, the veteran exhibited forward flexion to 20 degrees; his backward extension, lateral flexion and rotation were described as negative. There was objective evidence of pain on range of motion testing. Of record is a March 1993 letter from the L.R.E.C., the veteran's current place of employment. The letter essentially requests that the veteran indicate whether he was capable of performing the essential duties of his position, with or without any reasonable accommodations, in light of his medical condition. In a May 1994 letter, the L.R.E.C. indicated that the veteran had been hired by that facility in August 1991 as a dispatcher; he was hired on a part-time basis only, due to his low back disability. The letter indicates that additional duties were added to the veteran's position in 1993, and that the veteran's termination was considered at that time because the additional duties were strenuous and not compatible with the veteran's medical condition. The veteran was thereafter transferred into a part-time position as a cashier and receptionist, which involved less strenuous duties. The letter indicates that in September 1993, the veteran accepted a full-time position as a cashier and receptionist. The author of the letter indicated that, in his opinion, the veteran would not be able to obtain employment on a full-time basis outside of L.R.E.C. because of his low back disability. The veteran was afforded a VA examination in June 1994, at which time physical examination disclosed the absence of any postural abnormality, fixed deformity, or abnormality of the musculature of the back. On range of motion testing, the veteran exhibited forward flexion to 10 degrees, backward extension to 0 degrees, lateral flexion to 5 degrees, bilaterally, and rotation to 5 degrees, bilaterally; objective evidence of pain was identified on range of motion testing. The veteran was diagnosed with low back strain and possible intervertebral disc herniation. On VA examination in September 1994, the veteran reported experiencing low back pain with radiation to his lower extremities. Physical examination disclosed the absence of any postural abnormality, fixed deformity, or abnormality of the musculature of the back. On range of motion testing, the veteran exhibited forward flexion to 10 degrees, backward extension to 0 degrees, lateral flexion to 5 degrees, bilaterally, and rotation to 5 degrees, bilaterally; objective evidence of pain on range of motion testing was identified. The veteran complained of pain on straight leg raising, and he was diagnosed with a herniated intervertebral disc and secondary low back pain. In a November 1994 statement, the veteran indicated that the June 1993 VA vocational rehabilitation counseling narrative incorrectly reported the session. He emphasized that he was not in fact engaging in the physical activities discussed at the session. Moreover, he indicated that while he reported working as a dispatcher, his termination was considered after additional duties were added to his position, and that he thereafter obtained employment on a part-time basis, at 10 days per month, as a cashier and receptionist. He stated that he thereafter accepted a full-time position with his employer as a cashier and receptionist. He indicated, however, that he still experienced decreased mobility when working. In a December 1997 statement, J.F., a coworker of the veteran, indicated that she had witnessed the veteran experience severe pain on occasion. She also indicated that he would occasionally walk in a stooped position and drag his feet in short steps. The veteran was afforded a VA orthopedic examination in March 1998, at which time he reported experiencing constant low back pain radiating to his buttocks and to his lower extremities, more so on the right; he indicated that his symptoms were aggravated by prolonged sitting or standing. The veteran stated that he could lift up to 45 pounds at a time, but could carry no more than 25 pounds a short distance. He also reported that repeated bending aggravated his back disability and that he experienced limitation of lumbar motion; he indicated that he wore a back brace. The veteran informed the examiner that he was employed on a full- time basis in a clerical position for an electric cooperative. On physical examination, the veteran exhibited a downward left pelvic tilt, corrected by a heel lift. He exhibited slight bilateral lumbar spasm, and was tender over the lumbar area to percussion; no evidence of trochanteric or sciatic notch tenderness was identified. On range of lumbar motion testing, the veteran exhibited forward flexion to 50 degrees, extension to 5 degrees, lateral bending to 15 degrees, bilaterally, and rotation to 20 degrees, bilaterally; further movements elicited pain and stiffness but no increased spasm. Patellar reflexes were 3+, brisk and equal, and ankle reflexes were 2+, brisk and equal. No paresthesias over the L3, L4, L5 or S1 dermatomes to light pin touch was identified. Straight leg testing elicited low back discomfort, but no lower extremity weakness was elicited, and no weakness, incoordination or loss of motion against resistance of the lumbar spine was evident. The examiner diagnosed the veteran as status postoperative lumbar laminectomy for spinal stenosis, and with symptomatic degenerative joint disease of the lumbar spine. He concluded that the veteran had a mild to moderate degree of low back pain, with mild to moderate associated functional loss on repetitive bending and with flare ups of the veteran's back symptoms; he noted that the only functional loss due to pain consisted of loss of lumbar spine motion. He noted that the veteran was currently employed in a position involving clerical work, and he concluded that the veteran would be unable to perform ordinary manual labor. The record reflects that the veteran was thereafter admitted for several days in May 1998 for a neurological consultation in association with the March 1998 VA examination. In a June 1998 report, the examining physician noted that the veteran complained of radiating low back pain, as well as generalized lower extremity weakness and occasional lower extremity numbness. He also reported a tendency for urinary incontinence when unable to use the lavatory for prolonged periods, but denied any sexual disturbance. Physical examination disclosed the presence of a stiff lumbar spine with increased muscular contractures, although no deformity was identified. The veteran's gait was normal, and he was able to walk on his heels and toes, although with difficulty. Motor strength was 4+/5 in extension of the feet, 3+/5 in flexion of the hips, and 5/5 elsewhere. Sensory examination to pinprick was decreased on the right lateral femoral cutaneous area, with patchy bilateral lower extremity prick sensation decrease elsewhere, although not involving the nerve trunk or nerve root distribution. Deep tendon reflexes were 2+. Bone scan of the spine purportedly showed normal fixation, and an MRI purportedly showed mild stenosis of L3- L4 with a disc bulge and mild bone spurring, with decrease of the foramina on the right. EMG performed on an outpatient basis following the veteran's discharge from hospitalization purportedly showed no evidence of nerve root damage, and nerve conduction studies were normal. The examiner concluded that the veteran experienced daily pain which prevented him from heavy activities, but did not otherwise interfere with his regular daily activities. The examiner opined that there was no evidence of a focal neurological deficit or radiculopathy, or any other significant neurological impairment, associated with the veteran's low back disability. The RO has rated the veteran's low back disability as 60 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293. Under that code, the maximum evaluation is 60 percent evaluation and it is warranted for pronounced intervertebral disc syndrome with little intermittent relief, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). In the instant case, it is clear that the veteran's low back disability is manifested by pronounced intervertebral disc syndrome. X-ray and other diagnostic studies have disclosed the presence of degenerative disk disease as well as segmental lumbar instability, the veteran has consistently complained of severe low back pain and evidenced muscle spasm on examination, and has occasionally evidenced abnormal deep tendon reflexes. Moreover, Dr. Forristall in November 1992 specifically concluded that the veteran's complaints, as well as certain findings on examination, were consistent with a bilateral L5 nerve root involvement. The currently assigned evaluation of 60 percent is based upon pronounced intervertebral disc syndrome and is the maximum evaluation possible under Diagnostic Code 5293. The Board has also considered whether there is any other schedular basis for assigning a higher evaluation. In this regard, the Board notes that an 80 percent evaluation is warranted for complete paralysis of the sciatic nerve. With complete paralysis of the sciatic nerve, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation if it is mild, a 20 percent evaluation if it is moderate, a 40 percent evaluation if it is moderately severe or a 60 percent evaluation if it is severe (with marked muscular atrophy). 38 C.F.R. § 4.124a, Diagnostic Code 8520 (1999). Ankylosis of the lumbar spine warrants a 40 percent evaluation if it is at a favorable angle or a 50 percent evaluation if it is at an unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (1999). Limitation of motion of the lumbar spine warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). Sciatic neuropathy is specifically identified as a factor for consideration in the evaluation of a disability under Diagnostic Code 5293. Therefore, it would not be appropriate to evaluate the disability under Diagnostic Codes 5293 and 8520. 38 C.F.R. § 4.14. In order for an evaluation in excess of 60 percent to be warranted under Diagnostic Code 8520, the disability would have to more nearly approximate complete paralysis of the sciatic nerve than severe incomplete paralysis of the sciatic nerve. This clearly is not the case. The components of the disability could be assigned separate evaluations based on functional impairment of the lumbar spine (Diagnostic Code 5289 or 5292) and functional impairment of the right and left lower extremities (Diagnostic Code 8520) without violating the rule against pyramiding. In determining the extent of limitation of motion, the provisions of 38 C.F.R. § 4.40 (1999) concerning disability factors such as lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 (1999) concerning disability factors such as weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 (1999) concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Range of motion testing has confirmed that the veteran has limitation of motion of the lumbar spine with moderate to severe pain on motion. However, the medical evidence also demonstrates that the veteran retains some functional motion of the lumbar spine. Therefore, the functional impairment clearly does not more nearly approximate unfavorable ankylosis of the lumbar spine than favorable ankylosis of the lumbar spine. Accordingly, an evaluation in excess of 40 percent would not be warranted on the basis of functional impairment of the lumbar spine. The veteran has complained of bilateral lower extremity weakness and numbness, and was diagnosed prior to 1994 with neuropathy and radiculopathy. Moreover, EMG in June 1993 apparently disclosed findings consistent with a chronic neurogenic process affecting L4-L5 and S1 on the left, Dr. Forristall has concluded that the veteran's symptoms are consistent with bilateral L5 nerve root involvement, and X- ray and other diagnostic studies have disclosed, inter alia, the presence of degenerative disk disease. In addition, the veteran has exhibited lower extremity weakness on occasion. The Board notes, however, that numerous VA examinations since March 1991 have disclosed the presence of only slightly impaired to normal deep tendon reflexes, no more than mild weakness affecting the lower extremities, and a normal gait, and there is otherwise no evidence on repeated VA examinations of significant neurological involvement affecting the functioning of the lower extremities. Indeed, VA examinations since June 1994 are consistently negative for evidence of neurological abnormalities affecting the lower extremities. The March 1998 examination disclosed that the veteran exhibited no lower extremity weakness. The May and June 1998 neurological evaluations of the veteran, while they identified the presence of some decreased lower extremity sensation, notably the conclusion was that no nerve trunk or root involvement was indicated. Moreover, the neurological evaluation included an EMG which was negative for any pertinent abnormalities, and the reporting physician specifically concluded that there was no evidence of radiculopathy or other significant neurological impairment. In sum, even assuming the validity of earlier findings of radiculopathy and other neurological impairment, none of the medical evidence on file demonstrates that the actual functional impairment associated with either lower extremity is productive of more than mild incomplete paralysis of the sciatic nerve. Therefore, the Board concludes that a rating greater than 10 percent would not be warranted for either the right or the left lower extremity under Diagnostic Code 8520. If the disability were assigned separate evaluations of 40 percent under Diagnostic Code 5292 for impairment of the lumbar spine, 10 percent under Diagnostic Code 8520 for impairment of the right lower extremity, and 10 percent under Diagnostic Code 8520 for impairment of the left lower extremity, the combined evaluation for the components of the disability would be 50 percent, which is less than the evaluation currently assigned. 38 C.F.R. § 4.25. The Board has also considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). The Board notes, however, that while the veteran contends that his low back disability has affected his ability to obtain employment, he nevertheless has been employed on a full-time basis for a number of years. The Board further notes that there is no evidence that the veteran's low back disability has necessitated frequent periods of hospitalization or that the manifestations of the disability are unusual or exceptional. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluation. Therefore, the Board finds that the criteria for submission for an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. Total rating based on unemployability due to service- connected disability A total disability rating may be assigned where the schedular rating is less than total, and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more. Marginal employment, defined as existing generally when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person, shall not be considered substantially gainful employment. Marginal employment may also be held to exist, on a facts found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (1999). On his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated in January 1991, the veteran reported that he was born in October 1936, that he last worked on a full-time basis in July 1990 at a small engine repair shop which he owned, that his previous employment included working as a cook and as a parts manager, and that the most money he had ever earned in a year was $19,000. He reported that he had completed one year of college as well as training in small engine repair. The veteran indicated that he had attempted to obtain employment since November 1990 in a variety of positions. A copy of the veteran's earnings record, received in January 1995, shows that the veteran had taxed earnings of $475 in 1989; $3,559 in 1990; $3,761 in 1991; $7,501 in 1992; and $9,602 in 1993. In January 1998, the veteran submitted a second VA Form 21- 8940, on which he reported that he had been employed at L.R.E.C. since August 1991, including on a full-time basis as a cashier and receptionist since October 1993; he did not report his earnings at that position or any time lost because of low back disability. The veteran indicated that he had attempted to obtain a position as a rural carrier with U.S.P.S. in August 1992. The veteran's only service-connected disability consists of his low back disability, rated as 60 percent disabling. The record reflects that while the veteran experienced periods of unemployment prior to 1991, at least in part due to his low back disability, he was employed from August 1991 to September 1993 on a part-time basis as a cashier and/or receptionist, and has been employed on a full-time basis in that capacity since October 1993. While the veteran elected not to report his income to VA in his January 1998 VA Form 21-8940, the Board notes that the veteran earned $9,602 in 1993, when he was employed for most of the year on a part- time basis only. Effective September 30, 1999, the weighted average poverty threshold for one person for VA purposes, as established by the Department of Commerce, is $8,316. 64 Fed. Reg. 68413 (1999). The veteran's current employment therefore clearly can not be considered marginal on the basis of his earned annual income. In addition, although the veteran's representative has argued that the veteran's employment should nevertheless be considered marginal, and although his employer, in May 1994, concluded that the veteran could not maintain full-time employment outside of his current position with the company, the Board notes that there is no indication that the veteran is employed in a protected environment, or that his employment is otherwise marginal in nature. Although the veteran was not hired in 1992 for a rural carrier position with the U.S.P.S. because of his low back disability, and was described, at his March 1998 VA examination, as unable to maintain employment requiring ordinary manual labor, the Board again notes that the veteran has been employed on a full-time basis since October 1993 in a clerical position, and there is no indication that his position requires the type of manual labor addressed by the March 1998 VA examiner. Moreover, the June 1998 VA examiner concluded that the veteran's disability prevented him only from manual labor, but that his disability would not otherwise interfere with regular daily activities. Although the veteran has persistently referred to the August 1985 statement by Dr. Worth in support of his claim, the Board points out that Dr. Worth's conclusion, even assuming it is relevant to the instant appeal, is substantively the same as the opinion of the March 1998 VA examiner. Accordingly, as there is no evidence demonstrating that the veteran is unable to obtain or maintain gainful employment in positions other than those involving manual labor, and as the veteran has in fact been employed on a full-time basis in a clerical position since October 1993, the Board concludes that the evidence establishes that the veteran's service-connected disability is not sufficiently severe to render him unemployable. Accordingly, favorable action in connection with the veteran's appeal for a total rating based on unemployability due to service-connected disability is not in order. The Board notes that the veteran's representative has recently alleged that the veteran is currently unemployed because of his low back disability, or that, in the alternative, the veteran is employed on a part-time basis only; the representative's statements were apparently based on his review of the record. The Board notes, however, that the veteran clearly indicated in January 1998 that he was employed on a full-time basis as a cashier and/or receptionist, and that the veteran reported at his March 1998 VA examination that he was still employed in that capacity. The veteran has not alleged that he is currently unemployed, and there is no indication that the veteran informed his representative that he was unemployed. The Board therefore finds the contentions of the veteran's representative, to the effect that the veteran is not currently employed on a full- time basis, to be unsupported by the record. The veteran's representative has also alleged that the veteran was denied vocational rehabilitation benefits in 1993 because of his low back disability. As the November 1993 counseling narrative makes clear, however, no such determination was made. Indeed, the narrative indicates that the veteran consciously elected not to seek vocational rehabilitation benefits, and the veteran notably has not alleged that he was denied such benefits in 1993. ORDER Entitlement to an increased rating for low back disability is denied. Entitlement to a total rating based on unemployability due to service-connected disability is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals