Citation Nr: 1323299 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 04-06 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 40 percent for a low back disability on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis under 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1972 to July 1975. This appeal to the Board of Veterans' Appeals (Board) is from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claims, the Veteran testified at a videoconference hearing in January 2006 before a Veterans Law Judge (VLJ) of the Board. A transcript of that hearing has been associated with the claims file. The Board subsequently, in February 2006, remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. In October 2009, the Board granted a higher 40 percent rating for the Veteran's low back disability, but denied his TDIU claim on a schedular basis and remanded both claims to the AMC for extra-schedular consideration under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). In May 2010, the Veteran submitted a "Notice of Disagreement" (NOD) to the RO regarding the Board's October 2009 decision. That NOD apparently was attempting to appeal to the Board. But that decision is not appealable to the Board inasmuch as the Board rendered that decision (so the claims already were on appeal); instead, that Board decision is only appealable to the U. S. Court of Appeals for Veterans Claims (CAVC/Court), and only assuming the Veteran filed an appeal at the Court within 120 days of that decision. 38 U.S.C.A. § 511, 7103, 7104; 38 C.F.R. § 20.1100. In September 2010, after giving the increased-rating and TDIU claims the special consideration the Board had directed in its October 2009 remand, the Director of Compensation and Pension Service issued a decision denying these claims on an extra-schedular basis. In a March 2011 decision, the Board also denied these claims on an extra-schedular basis. The Veteran appealed that decision to the Court. In November 2011, VA's Office of General Counsel - representing the Secretary, and the Veteran's attorney filed a Joint Motion asking the Court to partially vacate the Board's decision and remand these claims to the Board for further development and readjudication in compliance with directives in that Joint Motion. As for the finding that the Veteran met the criteria for a higher 40 percent rating for his low back disability, this determination is still in place, so was unaffected by the Joint Motion. The Court granted that Joint Motion in an Order issued later in November 2011 and returned the file to the Board for further consideration consistent with the terms of the Joint Motion. The Board then, in turn, again remanded the claims in June 2012 for still further development, including especially obtaining another VA examination and opinion and referring the claim back to the Director of Compensation and Pension Service for a supplemental decision regarding possible extra-schedular entitlement. But even since, the claims have continued to be denied, so they are again before the Board. FINDINGS OF FACT 1. The Veteran's low back disability, which is his only service-connected disability and currently rated as 40-percent disabling, is not so exceptional or unusual as to render impractical the application of the regular schedular standards in the assessment of its severity. 2. But it is just as likely as not this low back disability prevents him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison, indeed, even in a sedentary, i.e., less physically demanding job. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 40 percent for the low back disability on an extra-schedular basis. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.321(b) (2012). 2. Resolving all reasonable doubt in the Veteran's favor, however, the criteria are met for a TDIU on an extra-schedular basis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA), codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were codified, in part, at 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide. The Court (CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, ideally, the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the Veteran was provided notice of the VCAA in January 2002 and November 2003. The VCAA letters indicated the types of information and evidence needed to substantiate his claim for a higher rating for his low back disability and the division of responsibility between him and VA in obtaining this supporting evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. He also received notice in May 2010 concerning the disability rating and effective date elements of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Dingess notice more concerns a claim for service connection and requires the provision of this notice regarding even the "downstream" disability rating and effective date elements of the claim in the event service connection eventually is granted. The Veteran's low back disability was determined to be a service-connected disability many years ago, so this appeal does not involve an appeal of an initial rating, instead, an already established rating requiring extra-schedular consideration. Compare and contrast Fenderson v. West, 12, Vet. App. 119 (1999) with Hart v. Mansfield, 21 Vet. App. 505 (2007). If a claim, as this claim for extra-schedular consideration on appeal here, originated as a claim for an increased disability rating, meaning the disability at issue already had been determined service connected in years past, so does not concern an initial rating, the VCAA requires that VA notify the claimant that to substantiate the claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. The notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him or her of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life. Vazquez-Flores, 580 F.3d at 1278. Only one of the three VCAA notice letters mentioned preceded the initial adjudication of the claim, but the claim has been reconsidered since providing all of the notices to effectively rectify ("cure") the timing defect in the provision of the additional notices that did not precede the initial adjudication of the claim. This was done in a January 2004 SOC and even more recently in July 2009, November 2011 and December 2012 SSOCs. See again Mayfield and Pelegrini, supra. Moreover, since the Board is granting the derivative TDIU claim, albeit on an extra-schedular rather than schedular basis, no discussion of the duties to notify and assist is therefore necessary concerning this claim because the Veteran is receiving this benefit, regardless. That is to say, even were the Board to assume, for the sake of argument, he has not received the required notice concerning this claim, this still would amount to at most nonprejudicial, i.e., harmless error inasmuch as this claim is being granted, rather than denied, in any event. 38 C.F.R. § 20.1102. He therefore has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). His arguments as to why he is entitled to a higher rating for his low back disability, so including a derivative TDIU since this is a type of increased-compensation claim, demonstrates his actual knowledge of the requirements for substantiating his claims. He has provided both written and oral testimony regarding the extent and severity of his low back disability symptoms and their effect on his daily activities and employability. The Board resultantly is satisfied he has actual knowledge of the type of information and evidence needed to substantiate his claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). Accordingly, the Board finds that no prejudice to him will result from the adjudication of his claims in this decision - especially, again, since his derivative TDIU claim is being granted rather than denied. So, in summary, the Board finds that it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose and not result in any significant benefit to the Veteran). And as concerning the duty to assist him with his claims, all relevant evidence necessary for an equitable resolution of his claims has been identified and obtained, to the extent possible. The evidence of record includes his VA outpatient treatment reports, private medical records, Social Security Administration (SSA) records, the reports of his several VA examinations, VA medical opinions resultantly obtained, and statements and testimony from him personally and his representative. Also, in January 2006, the Veteran had a videoconference hearing before a VLJ of the Board. The transcript reflects that the VLJ who presided over that hearing explained fully the issues and suggested the submission of evidence that the claimant may have overlooked and that would be potentially advantageous to the claimant's position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (discussing this two-fold obligation pursuant to 38 C.F.R. § 3.103(c)(2)). The transcript of the hearing reflects that the presiding VLJ identified the material issues - entitlement to an increased rating for the low back strain and entitlement to a TDIU. The presiding VLJ also noted the Veteran's representative was extremely thorough and comprehensive in addressing the claims and provided additional questioning aimed at identifying evidence and information not then of record that would tend to substantiate the claims. The presiding VLJ discussed the Veteran's vocational background, training and work history. In addition, he asked the Veteran about his problems with his low back when he got out of service and during the many year since. He then discussed with the Veteran that he was only rated for low back strain as his service-connected disability, although he had other disabilities affecting his low back, as well, such as degenerative disc disease (DDD). He addressed whether the Veteran would consider vocational training. He also addressed the Veteran's then current low back symptoms and the assistive devices he used and whether his disability had worsened since his last VA compensation examination in March 2002. He discussed the Veteran's pending SSA disability benefits claim and asked that he provide any additional information in connection with his SSA hearing that might be relevant to his VA claim, as well as any vocational rehabilitation information that might be helpful to his claim. Thus, the Board finds that the hearing officer's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the conducting of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The VLJ who presided over that hearing is no longer employed at the Board, since having retired. The Veteran resultantly was offered an additional hearing before the Board, before a different VLJ who would ultimately decide this appeal, however he declined this opportunity. See 38 C.F.R. §§ 20.700, 20.707. The Board also sees that the August 2012, May 2009, May 2008, January 2007 and March 2002 VA examination reports and the July 2009 VA addendum report reflect the examiners reviewed the Veteran's pertinent medical history, documented his then current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and most importantly with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board concludes that the medical examinations and opinions, taken together, are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). This case was previously remanded by the Board in June 2012 to obtain an adequate VA medical opinion regarding the Veteran's employability. And as the VA examiner provided all the information necessary to adequately address the questions posed in the Board's remand, there was the required compliance with the remand's directives, certainly substantial compliance. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand confers on the Veteran the right to compliance with its orders, and the Board itself commits error as a matter of law in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Finally, the Board observes that, while SSA records have been associated with the file and indicate the Veteran initially was denied disability benefits from this other Federal agency, these records and his statements also indicate he subsequently was awarded SSA disability benefits. There consequently may be outstanding records. 38 C.F.R. § 3.159(c)(2) (2012); see also Baker v. West, 11 Vet. App. 163, 169 (1998) (VA's duty to assist includes obtaining SSA records when the Veteran reports receiving SSA disability benefits, as these records may contain relevant evidence). According to the holding in Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), VA's duty to assist specifically includes requesting information from other Federal departments or agencies, so including SSA, if potentially pertinent to the claims before VA. Golz clarified that VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A are those relating to the injuries for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claims. Efforts to obtain these SSA records must be made until they are either obtained or it is determined they do not exist or that continuing efforts would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2); See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Here, though, as the Board is granting the derivative TDIU claim, so conceding the Veteran is unemployable on account of his service-connected low back disability, which also means he has even more than the marked impairment of employment contemplated by an extra-schedular rating for this disability, there is little to no practical reason in attempting to obtain any additional SSA records. In other words, as the Board is granting the TDIU benefit on appeal, unemployability on account of the service-connected low back disability is being readily acknowledged, therefore additional SSA records merely tending to reiterate this are not needed. Thus, the duty to assist him with his claims has been satisfied. He has not indicated that he has any other evidence to submit to VA, or that VA needs to obtain, which is relevant to his claims. There is no indication there exists any additional evidence that has a bearing on these claims that has not been obtained. He and his representative have been provided ample opportunity to present evidence and argument in support of these claims. All procedural due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Factual Background The Veteran's service-connected low back disability previously was rated as 20-percent disabling as of October 2001. But since, during the pendency of this appeal, the rating for this disability has been increased to 40 percent as of May 2009. In his October 2001 claim, he reported that due to his constant low back pain he was applying for unemployability and had been out of work for the past three years, meaning since 1998 or thereabouts. He also submitted a formal TDIU application (VA form 21-8940) alleging his low back disability had prevented him from securing or following any substantially gainful occupation, that his disability had affected his full-time employment in January 2001, that he became too disabled to work in January 2001, and that he had left his last job because of his disability. He also acknowledged not trying to obtain additional employment since he became too disabled to work. Elsewhere on that TDIU application, he explained that his last occupation was as a self-employed handyman, and he indicated that he had worked in that capacity from 1995 to 1998 and had lost 10 months of work because of illness. During a March 2002 VA compensation examination given in response to his claims, he reported experiencing a gradual worsening of symptoms of his lumbar back sprain over the past 30 years, which had been getting progressively worse especially over the past few years. He said he got severe back pain that worsened with walking or standing erect. He also reported having trouble sleeping and the condition was daily and chronic without flare-ups. He stated that he then currently did not work and had not worked since 1983, secondary to his back pain. He was unable to help much around the house and required the assistance of his mother and family with many activities of daily living. He reportedly was able to walk up to 75 yards but did get some severe pain. He used a cane and medication, Darvon, Naprosyn, and Tylenol #3. Pain and stiffness were the only complaints noted. He was diagnosed with syndrome of neurogenic claudication, usually most likely secondary to spinal stenosis, disc disease, ligamentous hypertrophy and facet hypertrophy. It was noted this was a degenerative disease, however, the Veteran's back sprain certainly contributed to pain, although the spinal stenosis certainly seemed to be the most severe component in his condition. In an April 2002 Request for Employment Information (VA form 21-4192), the Veteran's former employer furnished information regarding his employment at Quincy Farms from July 1996 to January 1999. The Veteran was employed during that time as an equipment operator, working eight hours a day, 40 hours a week. The reason for his termination was reported as him having accepted another job with better pay, and the date he had last worked was in January 1999. The former employer also noted the Veteran was not receiving or entitled to receive sick, retirement or other benefits as a result of his employment with that employer. In his July 2002 Notice of Disagreement (NOD), the Veteran reported that due to the severity of his low back pain, he found it virtually impossible to seek gainful employment at that time. Thereafter, on a February 2004 VA Form 9 (Substantive Appeal to the Board), he reported that his low back pain continued to worsen and that he resultantly was unable to secure or follow a substantially gainful occupation. According to a March 2003 VA outpatient treatment report, he was treated for back pain and mentioned that he was unable to work and was tired of having to ask his wife for help because he could not do things for himself. Private medical records from July 2003 to January 2004 reflect that he was involved in a motor vehicle accident in June 2003, resulting in complaints of back pain. He indicated that he had no light duty available during recovery at work, although he worked with others who could help with heavy lifting. He also reported his work activities had been restricted since his injury and that he had not been able to work since the injury. In August 2004, he was treated at a VA facility for back pain and complained that he was not sleeping at night and was unable to do much during the day due to pain. His January 2004 SSA Application for Disability Benefits indicates he became unable to work due to his disabling condition in June 2003, the same date of his motor vehicle accident. January 2004 Employment and Wage Information provided to SSA indicates he was employed from January 2001 to February 2003 and from February 2003 to June 2003, working in maintenance for two different companies. In a January 2004 SSA Work History Report and a January 2004 SSA disability report, he indicated having worked from 1989 to 1993 as a construction worker, from 1993 to 2003 as a maintenance man at an apartment complex, and from March 1998 to December 2003 at several companies, working mostly again in maintenance. An April 2004 SSA Disability Determination and Transmittal Report reflects that he was not found to be disabled. In a June 2004 SSA Physical Examination for Disability Determination, he reported sustaining a disc herniation at L5-S1 and was in constant pain despite prescribed medications, physical therapy, steroid injections, and the use of a TENS unit. Pain was exacerbated by prolonged sitting, standing and walking. He reported previously working as a maintenance man. He was assessed with chronic low back pain. A July 2004 SSA Physical Residual Functional Capacity Assessment report reflects he was diagnosed with back pain and was limited with lifting more than 10 pounds frequently and 20 pounds occasionally and limited in standing and sitting for about six hours in a work day. He was noted to have a normal gait with no assistance. His symptoms and limitations were found to be credible. A July 2004 SSA Disability Determination and Transmittal Report reaffirmed the April 2004 decision. Notice of the July 2004 decision found that his condition was not severe enough to keep him from working. A February 2005 VA outpatient treatment report reflects that he complained that his primary care physician would not give him pain medication and he could not work or support his family. At that time, pain mediation was denied due to his testing positive for cocaine and opiates. In August 2005 he submitted another TDIU application (VA form 21-8940), indicating his service-connected low back disability had prevented him from securing or following any substantially gainful occupation and that this disability had affected his full-time employment in 2000. He also reported the date he had last worked full time as in 2000, and he became too disabled to work in 2000, at which time he was working in maintenance. He explained that he had last worked as a self-employed handyman for approximately four years, approximately from 1996 to 2000, and had lost time from illness whenever he was in severe pain. He also again stated that he had left his last job because of his disability. He also reported trying to obtain other employment since becoming too disabled to work. According to a September 2005 VA outpatient treatment report, he was treated for and diagnosed with chronic lower back pain. At that time he complained that he was unable to stand for long or walk for more than a few feet without stopping to rest due to pain. The assessment included summary indicating he was unable to work due to pain which limited his standing and ambulating. During his January 2006 videoconference hearing before the Board, he testified that his back had gotten worse since his last rating and that he had tried to work but was unable to perform the duties required. He reported that he went to school for air conditioning, refrigeration, plumbing, electrical and maintenance work, all of which required heavy lifting, stooping, bending and a lot of movement up and down stairs. He said he used a TENS unit to help alleviate his pain and discomfort, also a cane and brace for his back to assist with support and ambulation. He testified that he had last worked full time in May 2005, working in maintenance, and that he had not worked at all since. He indicated that he had tried to look for other employment but that people said he was a high risk because of his low back condition. He also indicated he was in the process of reapplying for SSA disability benefits and was awaiting a hearing in January 2006, so that same month. He further testified that he had not talked to vocational rehabilitation at all. He stated that he had been using a brace since 1978, which had helped a little, however, he began doing more maintenance work and strenuous work and his back started bothering him more. He reiterated that he had been trying to get some work, although he kept being turned down because of his low back disability. In supporting January 2006 lay statements, his brother and sister attested to his then current physical impairment. His brother explained that he had to help him with his personal daily hygiene and had to help him in and out of the bathtub. He also stated that, at times, the Veteran had excruciating pain in his low back and he had to drive the Veteran whenever he had to go somewhere, including the doctor, the grocery store and church. The Veteran's sister indicated he needed assistance from the family for his daily necessities - including getting into and out of the bathtub, getting out of a chair and getting out of bed. She also said he could not sleep due to severe back pain and that his pain caused him to become very agitated at times. She also stated that she had ordered pain creams and liniment for his back. As well, she indicated he had been suffering with this problem for quite a few years and that it did not seem to be getting any better. In a May 2006 SSA decision, the Veteran was again found to be not disabled according to the Social Security Act regulations and was not under a disability. But other SSA records indicate he appealed that decision and he since has submitted a statement indicating he is now receiving SSA disability benefits, so presumably because of the granting of his claim on appeal or perhaps following the filing of another claim entirely. The report of a June 2006 VA outpatient psychiatry consultation reflects that the Veteran complained of experiencing severe back pain and that, because of his back pain, he had been unable to work for four or five years. In a November 2006 VA physical therapy report, he mentioned that his back had been bothering him since he was in the military and that his pain was worse in the morning and increased with activities during the day - such as lifting, walking and work. During a January 2007 VA examination, he reported having worked in maintenance post military, which had involved a lot of going up and down stairs and lifting heavy appliances. He reported that his back had gotten progressively worse. He was observed to walk slowly with a cane and reportedly was unable to walk more than a few yards without having pain in his lower back. He also had low back pain with standing for more than just a few minutes. He had a TENS unit that gave some temporary relief. He was unable to do any motion in any direction of the cervical or thoracolumbar spine because of pain and stiffness, however, he was also observed to bend over with an estimate of at least 70 to 90 degrees of flexion of the thoracolumbar spine to pick up his shoes and tie them. He reiterated that his usual occupation was in maintenance and that he was then currently unemployed, but not retired. He stated the duration of unemployment had been for two to five years because he could not get hired due to his low back condition. He said his low back condition prevented chores and shopping and had moderate effects on bathing and toileting. He also reported having trouble getting in and out of the tub and cars and going down steps. he stated he was unable to do chores at home, could not drive and had difficulty with getting out of bed and getting his clothes on. He reported that the only type of work he was able to do was maintenance, but he was unable to do even that work due to the demands of stooping, lifting, bending, climbing, crawling and walking. He had a 12th-grade education. During a May 2008 VA examination, he reported that his back hurt constantly with low back pain radiating into his lower extremities, bilaterally, with daily flare ups. He also reported that any activity, such as prolonged sitting, standing or walking, tended to exacerbate his pain. He had unsteadiness on his feet but denied any falls. He used a cane to walk, as well as a back brace and a TENS unit and medication for his pain. He again recounted that he used to work in maintenance but had not worked since 2004 on account of his low back pain. He maintained that his activities of daily living (ADLs) were severely limited, in that he could not do any lifting, twisting or bending. He had trouble walking long distances. He said he was unable to basically do any kind of strenuous activity. He reported having no medically-prescribed periods of incapacitation over the last 12 months due to his back pain. The examiner observed the Veteran ambulated with a cane and had a very stiff gait. During range-of-motion testing, the examiner observed the Veteran's main limitation appeared to be self imposed to any further movement due to pain and he was reluctant to do further repetitive testing because it was stiff and painful. The examiner concluded the Veteran was severely limited in his range of motion, mainly because of his pain, though his complaints appeared to be exaggerated. An October 2008 VA outpatient treatment report reflects that he was treated for continued severe low back pain and was working in maintenance, however this made his back pain worse. Thereafter an April 2009 VA physical therapy report indicates he was no longer working. During a May 2009 VA examination, he reported his low back condition had gotten progressively worse with increased back and leg pain. Treatment for this condition included occupational and physical therapy, a TENS unit, heat, exercise and medication. He was observed to wear a back brace and use a cane. Pain, fatigue, stiffness, and decreased motion were reported and pain was worsened with standing, lifting, and walking. No incapacitating episodes were identified. He was unable to walk more than a few yards, could sit for a maximum of 45 minutes and stand for a maximum of 10 minutes. His gait was described as slow and steady and he used a cane for safety. He reported that his usual occupation was reportedly in maintenance work and that he was then currently unemployed but not retired for the past one to two years. His reason for unemployment was that he could not hold a job due to his back condition. He reported significant effects of his back condition on his usual occupation, including decreased mobility, problems with lifting and carrying, lack of stamina, pain and an inability to perform his duties. The effects on his activities of daily living included: mild effects on grooming; moderate effects on dressing and toileting; severe effects on chores, shopping, exercise, recreation, traveling and bathing; and the prevention of sports. The examiner opined that the Veteran's service-connected condition should not preclude sedentary employment. He also found that physical employment was markedly limited given the Veteran's service-connected spine condition. He noted the Veteran had significant limitation with range of motion at the thoracolumbar spine and was unable to lift, bend or ambulate for any distance. The examiner also found that, despite being able to do sedentary work, it was unlikely the Veteran could maintain a 40-hour work week with any regularity due to prolonged sitting limitation from his service-connected spine condition. In a July 2009 VA opinion, the examiner found that the Veteran's DDD and osteoarthritis of the lumbar spine were less likely than not caused by or a result of his service-connected back strain. While the examiner concluded that a nexus could not be made between the conditions, he also found that it would require mere speculation to separate the symptomatology for the nonservice-connected conditions as opposed to the service-connected back strain and that the only condition that would be unrelated to the service-connected lumbar strain and completely related to the DDD and osteoarthritis of the lumbar spine was the Veteran's bilateral leg pain (presumably referring to the associated radiculopathy, i.e., radiating pain and numbness into his lower extremities). In a September 2010 Administrative Review for Extra-schedular Consideration Under 38 C.F.R. § 4.16(b), the Director of the Compensation and Pension Service found that the Veteran's back strain was appropriately rated and did not warrant a higher evaluation on an extra-schedular basis. In so finding, the Director pointed out that the Veteran had not had any surgery or hospitalization for his lower back condition. He also noted the Veteran did not have any incapacitating episodes due to his back condition. The Director also found that the Veteran had VA outpatient physical therapy sessions scheduled but did not attend eight of the 12 sessions and was discharged due to the lack of attendance and lack of progress. The Director also observed that the May 2009 VA examiner did not definitively state that the Veteran would be unable to perform any type of sedentary employment. The Director concluded that the objective findings on the most recent medical examinations did not demonstrate that the Veteran's service-connected condition prevented him from engaging in all types of work-related activities, and therefore, entitlement to a TDIU on an extra-schedular basis was not established. At the conclusion of a more recent August 2012 VA examination the Veteran was diagnosed with lumbar strain, DDD of the lumbosacral spine, and degenerative joint disease (DJD), i.e., osteoarthritis of the lumbosacral spine. He reported that since his last VA examination his low back condition had become worse. He reported that he had more difficulty moving and required more help getting out of bed or out of the shower. He stated he had increased pain in both legs and laid down a lot at home. He was able to sit for 10 minutes but then had to stand/walk for five to 10 minutes. His job was in maintenance work but he had been unable to work since 2008, as he could no longer lift or carry heavy objects. It was specifically noted that he did not have any intervertebral disc syndrome (IVDS). Assistive devices included a brace, cane and walker for regular use. The examiner found that the Veteran's thoracolumbar spine condition impacted his ability to work in that he was unable to lift, carry weight, bend or crawl. The examiner found that the Veteran's low back condition would preclude both physical and sedentary work. He explained that the Veteran had a severe decrease in range of motion of the back and pain and would be unable to do any physical work. He found the Veteran was unable to sit for prolonged periods, making full time sedentary work impossible as well. He additionally noted the Veteran's condition had deteriorated since the previous examination in May 2009 and that he clearly was now severely compromised from a work standpoint secondary to his low back condition. He found the Veteran was no longer capable of marginal sedentary employment, which was noted at the conclusion of the prior May 2009 examination. In a November 2012 report from the Compensation and Pension Service in regard to extra-schedular consideration of the Veteran's service-connected low back disability, the Director of Compensation and Pension Service found that the evidence still did not establish that the Veteran's service-connected low back strain presented an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Therefore he found that entitlement to an extra-schedular evaluation in excess of 40 percent under 38 C.F.R. § 3.321(b)(1) was not established. He also found that the Veteran was not shown to be unemployed and unemployable due to his service-connected low back strain. Accordingly, he found that entitlement to an extra-schedular TDIU under 38 C.F.R. § 4.16(b) was not established, either. In so finding, the Board points out that the evidence reviewed and noted in the claims file did not include any discussion or mention of the results of the most recent VA examination in August 2012. Entitlement to a TDIU on an Extra-Schedular Basis Under 38 C.F.R. § 4.16(b) It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "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)(1), 4.15 (2012). While the regulations do not define "substantially gainful employment", VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." See also Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See, too, Faust v. West, 13 Vet. App. 342 (2000) (defining "substantially gainful employment" as an occupation providing an annual income exceeding the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to the Veteran's earned annual income). In Moore, the Court noted the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment is not considered substantially gainful employment and is deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. 38 C.F.R. § 4.18. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from common etiology or single accident or affecting both upper or lower extremities, as examples, will be considered as one collective disability. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the Veteran does not meet these percentage requirements, a total rating nonetheless may be assigned on an extra-schedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of service-connected disability or disabilities. 38 C.F.R. § 4.16(b). A Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough. A high rating in itself constitutes recognition that the impairment makes it difficult to obtain and keep employment. 38 C.F.R. § 4.1. The question, instead, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). That said, requiring a Veteran to prove that he is 100-percent or totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability. A requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Based on a review of the relevant evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports his claim of entitlement to a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board observes that he does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a) at any time during the period of this appeal. There is just one service-connected disability, his low back strain, which previously was rated as 20-percent disabling as of October 2001 but since has been rated higher, as 40-percent disabling effectively since May 2009. The combined rating for this service-connected disability therefore has been the same as of those dates. Consequently, he can only receive a TDIU instead on an extra-schedular basis under the alternative provisions of § 4.16(b) - and provided, as mentioned, it is established he is indeed unemployable on account of this service-connected disability. The VA examinations and VA outpatient treatment reports, taken together, demonstrate he has had ongoing problems with his low back symptoms which have affected his employment, including having difficulty with lifting, carrying, bending, standing, walking, sitting and overall general movement. In addition, the evidence of record indicates his vocational training and experience was mainly in the area of maintenance and that his educational background ended at 12th grade. Moreover, while he has indicated having been unemployed since 1996, 1998, 2000, 2001, 2003 and 2008, the evidence of record demonstrates that throughout the duration of the appeal he has been unable to maintain a job for any sustained period of time and his periods of unemployment have been greater than periods of employment. In addition, the only medical opinions of record addressing his employability are those of the May 2009 and August 2012 VA examiners. In May 2009, the examiner found that physical employment was markedly limited given the severity of the Veteran's service-connected spine condition, although that examiner determined this condition would not preclude sedentary employment. However, the examiner further stipulated that, despite being able to do sedentary work, it was unlikely the Veteran could maintain a 40-hour work week (so a full work week) with any regularity due to prolonged sitting limitation from his service-connected spine condition, thereby in hindsight indicating he was in actuality only capable of what would amount to marginal sedentary employment. His prior education, training and experience indicate his vocational capacity includes only physical employment, so not any job that has allowed him to work in this supposedly viable alternative sedentary role. But even more definitively, the August 2012 VA examiner rather unequivocally determined the Veteran's low back disability would preclude both physical and sedentary work. In providing the required explanatory rationale, this additional VA examiner noted the Veteran had progressed since the previous examination in May 2009, meaning his low back disability has worsened appreciably, and that he clearly was now severely compromised from a work standpoint secondary to his low back condition. He found the Veteran was no longer capable of even the marginal sedentary employment that had been noted at the conclusion of the May 2009 examination. Therefore, this most recent VA examiner left no doubt that now all forms of substantially gainful employment, whether physically demanding or instead just of a more sedentary variety, are precluded because of the severity of the Veteran's service-connected low back disability. As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Therefore, now lacking any such unfavorable evidence, the Board finds that a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) is warranted. A Rating Higher Than 40 Percent for the Low Back Disability on an Extra-Schedular Basis Under 38 C.F.R. § 3.321(b)(1) The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the Rating Schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If, however, the Rating Schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular criteria, both under the former rating standards for back disabilities and the revised standards are adequate to rate the disability under consideration. 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). The Rating Schedule fully contemplates the described symptomatology, including, as already explained, the pain, stiffness and loss of movement (limitation of motion), which the Veteran has continually complained of and which are specifically considered in the diagnostic criteria. In addition, there are no reports of hospitalization on account of this disability, and only this disability, certainly not on what could be considered a frequent basis. Instead, most, if not all, of the evaluation and treatment the Veteran has received for this disability has been on an outpatient, rather than inpatient, basis. Moreover, since the derivative claim for a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) is being granted in this decision, he already has been found to be unemployable because of his service-connected low back disability. The CAVC has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16(b)." See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008) ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable."). Therefore, the Board's decision to grant his derivative TDIU claim, even on an extra-schedular basis under § 4.16(b), is concession he has occupational impairment attributable to his service-connected low back disability that is greater than just the relatively "marked" impairment with employment contemplated by an extra-schedular rating for this disability under § 3.321(b)(1). ORDER The claim of entitlement to a rating higher than 40 percent for the low back disability on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) is denied. However, the claim of entitlement to a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs