Citation Nr: 1336403 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 05-25 455A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, prior to December 12, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from May 1991 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2012, the Veteran testified at a hearing before the undersigned. The transcript of the hearing is associated with the claims file and has been reviewed. In March 2013, the Board remanded this matter for additional development. The requested development included providing the Veteran a VA examination of his lumbar spine and referring the claim for a TDIU to the Director of Compensation and Pension for any time period in which the Veteran did not meet the schedular criteria for a TDIU. The Veteran was afforded a VA examination in May 2013. The TDIU claim was referred to the Director of Compensation and Pension in June 2013. The development was completed in compliance with the March 2013 remand. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to April 26, 2008, herniated nucleus pulposus of the lumbar spine manifested with flexion of 30 degrees or greater. The Veteran did not have favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome. 2. From April 26, 2008, herniated nucleus pulposus of the lumbar spine more nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less. The Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome. 3. It is factually ascertainable that the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation from June 1, 2007. CONCLUSIONS OF LAW 1. Prior to April 26, 2008, the criteria for a disability rating higher than 20 percent for herniated nucleus pulposus of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for a 40 percent disability rating for herniated nucleus pulposus of the lumbar spine were met from April 26, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for entitlement to a TDIU, for the time period from June 1, 2007 to December 11, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, a January 2005 letter informed the Veteran of the evidence required to substantiate his claim for an increased rating for degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine and of the Veteran's and VA's respective duties for obtaining evidence. Additional notice provided in May 2008 complied with the requirements of Vazquez. A February 2008 letter informed the Veteran of the evidence required to substantiate a claim for a TDIU and of the Veteran's and VA's respective duties for obtaining evidence. The May 2008 letter included notice regarding effective dates and disability ratings. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records have been obtained, as well as post-service VA treatment records identified by the Veteran and records from the Social Security Administration (SSA). The Veteran was afforded VA examinations of his lumbar spine in January 2005, August 2008 and March 2013. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations. The claims file and treatment records were reviewed, the Veteran's history was taken, and complete examinations were conducted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). As noted above, the Veteran was afforded a personal hearing before the Board in December 2012. At that hearing, testimony was presented on the issues of entitlement to an increased evaluation for degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine and entitlement to a TDIU. The Veterans Law Judge and the Veteran's representative outlined the issues on appeal, and the Veteran and representative engaged in a colloquy as to substantiation of the claims, including identifying relevant types of evidence. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the available relevant records, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claims Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Increased Rating for Lumbar Spine Disability A September 1997 rating decision granted service connection for degenerative disc disease with mild herniated nucleus pulposus of the lumbar spine. A 10 percent rating was assigned from January 1997. A December 2000 rating decision increased the rating for the Veteran's lumbar spine disability to 20 percent disabling from September 2000. A claim for an increased rating was received in December 2004. The March 2005 rating decision on appeal continued the 20 percent rating. The Veteran has asserted that a higher evaluation is warranted because his back pain is worse. In statements and testimony in support of his claim, the Veteran indicated that his back disability requires morphine. The Veteran's lumbar spine disability is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 30 percent rating is awarded for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Veteran had a VA examination in January 2005. The Veteran reported that he was being seen by a pain management psychiatrist. He reported that he had been on several medications and was taking morphine. The Veteran reported that his work as a truck driver was affected. He reported that he had a commercial driver's license, which indicated that he could not drive due to the medication he was taking for his back pain. The Veteran reported that his left leg had weakness and numbness, and there was some pain noted to the knee and occasionally to the foot. The Veteran reported that he did not have pain in his right leg. Upon physical examination, the Veteran had rotation of 10 degrees to the right and 10 degrees to the left. He had lateral bending of 10 degrees to the right and the left. He had extension to 20 degrees and flexion to 60 degrees. While standing and alternate leg standing, spasm was noted in the left lumbar muscle area. On repetitive use in flexion and extension, there was pain in the back radiating down into the left leg and knee area. The VA examiner indicated that there was lumbar muscle weakness, fatigability, and lack of endurance on repetitive use. No incoordination was noted. The range of motion remained the same on repetitive use. On neurologic examination, the Veteran indicated decreased sensation in the medial left thigh and calf and sole on the left side. Reflexes were normal in the knees and ankles. A VA physical medicine evaluation dated in February 2004 noted pain with palpation to the left lumbosacral and sacroiliac, with no bruising, warmth or erythema noted. There was moderate pain with palpation to left buttocks. The Veteran had lumbar flexion to 90 degrees and extension to 20 degrees. He had rotation to 35 degrees bilaterally and flexion to 40 degrees bilaterally. Sensation was intact to monofilament. A disability evaluation completed for the Social Security Administration in April 2008 noted that the Veteran was able to bend 30 percent but refused to squat due to back pain. The Veteran had a VA examination in August 2008. The Veteran reported that his back pain was progressively worse. The Veteran reported decreased motion, stiffness, weakness, spasms and pain. He reported radiation of pain to both legs. The Veteran denied incapacitating episodes in the prior 12 months. On physical examination, the Veteran did not have spasm, atrophy, guarding, pain with motion or tenderness of the thoracic sacrospinals. The Veteran's gait was antalgic. The Veteran did not have abnormal spinal curvatures. Motor and sensory examinations were normal. The Veteran had flexion of the thoracolumbar spine to 90 degrees, with pain beginning at 90 degrees. The Veteran had extension from 0 to 30 degrees, with pain at 30 degrees. The Veteran had lateral flexion to 30 degrees bilaterally, with pain at 30 degrees bilaterally. He had right lateral rotation to 20 degrees with pain at 20 degrees, and he had left lateral rotation to 15 degrees, with pain at 15 degrees. The Veteran did not have additional limitation of motion with repetition. A VA neurosurgery note dated in August 2012 reflects that the Veteran reported pain from his back, radiating into his feet, left greater than right. A VA physician noted that strength and sensation were full. The Veteran had a VA examination in March 2013. The Veteran had forward flexion to 40 degrees, with objective evidence of pain noted at 10 degrees. He had extension to 5 degrees, with objective evidence of pain noted at 5 degrees. The Veteran had lateral rotation to 5 degrees bilaterally and lateral flexion to 5 degrees bilaterally. Pain was noted at 5 degrees of rotation and 5 degrees of lateral flexion bilaterally. The Veteran declined to perform repetitive use testing with three repetitions because it was too painful. The VA examiner noted that the functional loss of the thoracolumbar spine included less movement than normal, weakened movement, pain on movement and interference with sitting, standing and/or weight-bearing. Muscle strength testing showed normal strength in hip flexion, knee extension, ankle plantar flexion and great toe extension. The Veteran had 5/5 muscle strength in ankle dorsiflexion on the right and 4/5 strength on the left. The VA examiner indicated that the Veteran did not have muscle atrophy. The VA examiner noted that the Veteran had normal reflexes of the knees. The Veteran had hypoactive ankle reflex on the right and absent ankle reflex on the left. Sensory examination was normal. The Veteran had negative straight leg raising tests on the right and left. The VA examiner indicated that there were no signs of radiculopathy of the right lower extremity. The VA examiner indicated that there was sciatic nerve involvement of the left, which was moderate in severity. The VA examiner indicated that there were not any other neurological abnormalities related to the Veteran's thoracolumbar spine condition. The Board finds that the criteria for a rating in excess of 20 percent were not met prior to April 26, 2008. The evidence prior to April 26, 2008 does not show that forward flexion of the thoracolumbar spine was 30 degrees or less. The VA examination reports and outpatient evaluations during this time period showed forward flexion no worse than 90 degrees, even when pain and functional loss are considered. However, there was a finding that the Veteran could only bend 30 percent on SSA examination on April 26, 2008, which equates to forward flexion of less than 30 degrees. Although on VA examination four months later in August 2008, flexion was to 90 degrees, on the most recent VA examination in March 2013 the Veteran had pain at 10 degrees even though the Veteran was able to forward flex to 40 degrees. The more consistent finding from April 26, 2008 overall support the assignment of a 40 percent rating. There are also no findings of unfavorable ankylosis that would warrant a rating in excess of 40 percent from April 26, 2008. The record shows that the Veteran retained mobility in his spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Board acknowledges the Veteran's subjective complaints of back pain. The Court has held, however, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40 , 4.45, the Board finds that the Veteran's functional loss from his back disability does not equate to more than the disability picture contemplated by the 20 percent rating assigned prior to April 26, 2008. 38 C.F.R. § 4.71a. The evidence for the period prior to and from April 26, 2008 also shows that the Veteran did not report incapacitating episodes of intervertebral disc syndrome, and there were no objective findings of incapacitating episodes associated with the Veteran's lumbar spine disability. Accordingly, a higher rating is not assignable based upon incapacitating episodes of intervertebral disc syndrome. The Board finds that the criteria for a 40 percent rating were met as of April 26, 2008, based upon the April 2008 SSA disability examination, which noted that the Veteran could bend only 30 percent. This finding more nearly approximates forward flexion of the thoracolumbar spine of 30 degrees or less. 38 C.F.R. §§ 4.40, 4.45. Accordingly, the Board concludes that a 40 percent rating is warranted from April 26, 2008. The Board finds that the criteria for a rating in excess of 40 percent have not been met at any point during the appeal period. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, which has not been shown, as the Veteran has retained mobility of his spine. A rating in excess of 40 percent is not assignable based upon incapacitating episodes, as there are no complaints or objective findings of such episodes during the appeal. The Board has considered whether a separate rating is warranted for neurological impairment associated with the Veteran's lumbar spine disability. The VA examination report dated in March 2013 indicated that the Veteran has moderate radiculopathy of the left lower extremity. The RO granted service connection for radiculopathy of the left lower extremity in an April 2013 rating decision and assigned a separate 20 percent rating. The evidence does not show neurological manifestations, other than moderate left leg radiculopathy, for which a separate rating has been assigned. For the reasons set forth above, the Board finds that a rating in excess of 20 percent is not warranted for the period prior to April 26, 2008. The Board finds that a 40 percent rating, but no higher, is warranted for from April 26, 2008. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation 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 the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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 extraschedular rating. Id. In this case, there is marked interference with the Veteran's employment due to his service-connected degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine. In this decision, the Board has awarded a TDIU on an extraschedular basis, which fully recognizes extraschedular impairment due to degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine. The TDIU is effective from June 1, 2007. With regard to the period prior to June 1, 2007, the Board finds that the rating criteria adequately contemplated the Veteran's lumbar spine disability. The criteria considered manifestations such as pain, limitation of motion and incapacitating episodes of intervertebral disc syndrome. Accordingly, the Board finds that the schedular rating criteria are adequate to rate the Veteran's lumbar spine disability, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1) . TDIU prior to December 12, 2012 A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). A claim for entitlement to a TDIU was initially received in April 2005. In April 2005, the Veteran submitted a Notice of Disagreement for his claim for an increased rating for his lumbar spine disability. in which he requested entitlement to unemployability due to back pain. Prior to December 12, 2012, the Veteran's only service-connected disability was degenerative disc disease with mild herniated nucleus pulposus of the lumbar spine, which was rated as 20 percent disabling prior to April 26, 2008, and 40 percent disabling from April 26, 2008. Therefore, the percentage requirements of § 4.16(a) were not met prior to December 12, 2012. The percentage requirements of § 4.16(a) were met from December 12, 2012, and entitlement to a TDIU was granted from that date. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, in June 2013, the RO referred the Veteran's case to the Director, Compensation Service. In June 2013, the Director denied entitlement to an extraschedular TDIU. Because the Director, Compensation Service has already addressed the issue, the Board may now consider it without prejudice to the Veteran. In an application for a TDIU dated in February 2008, the Veteran reported that he last worked in May 2007. In a statement dated in January 2008, Dr. H.R., the chief of staff at a VA Medical Center, stated that the Veteran's narcotic pain medications made him unemployable based upon the risks to himself and others, due to side effects such as decreased levels of consciousness and ability to respond rapidly and appropriately to potential threats. A June 2008 statement from the Veteran's former employer noted that the Veteran was hired as a cook and did well at first but was unable to continue due to constant back pain. The Veteran's former employer indicated that he had to accept the Veteran's resignation and hire a replacement. An SSA disability determination dated in May 2008 determined that the Veteran was disabled from June 1, 2007 due to his back disability. A VA examination of the spine, dated in May 2010, noted significant effects associated with the Veteran's degenerative disc disease of the lumbar spine. The examination report indicated that the impacts on occupational activities included problems with lifting and carrying and pain. At the Board hearing in December 2012, the Veteran testified that he last worked in 2007. He testified that he could not sit or stand for long periods of time. The Veteran also stated that he could not perform heavy lifting. The Veteran testified that, where he was from, the types of jobs available such as construction, retail and food services required these types of activity. The Veteran testified that he was previously a truck driver and could not drive anymore because of his medication. He testified that he would have difficulty performing a sedentary job because he cannot sit for a long period of time due to his back disability. In March 2013, the Board determined that referral for extraschedular consideration of entitlement to a TDIU was warranted. In June 2013, an opinion was obtained from the Director of Compensation and Pension. It was noted that the Social Security Administration determined that the Veteran was entitled to disability beginning June 1, 2007, due to a back disability. The Director noted that treatment records from the VA Medical Center showed ongoing treatment for back and knee pain and for a mood disorder. Morphine was initially prescribed for pain relief, but was later changed to Oxycodone, which reportedly resulted in better pain relief and fewer symptoms of depression. The March 2009 treatment report noted that a treating psychologist advised of the availability of vocational rehabilitation. An April 2011 treatment report indicated that, although the Veteran was eligible for vocational rehabilitation, he was not interested in training for a new type of employment, as he liked things the way they are. The Director of Compensation and Pension concluded that the review of the evidence did not establish that the Veteran was unemployable due to service-connected disabilities prior to December 12, 2012. The Board emphasizes that entitlement to an extraschedular rating under 4.16(b) requires that the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The evidence shows that most of the Veteran's work experience is in jobs which require manual labor. In this case, it is clear that the Veteran's service-connected disabilities render him unable to perform an occupation which requires manual labor. The Veteran completed high school. The Veteran testified that he did not have additional training in other fields after high school. The evidence shows that the Veteran's ability to perform a sedentary occupation is also precluded due to his service-connected disabilities. The Veteran credibly testified that he cannot sit for a long period of time because of his service-connected back disability. As noted, SSA determined that the Veteran was disabled as a result of his back disability. While decisions of SSA are not binding on the Board, it is significant evidence, particularly as the primary diagnosis listed as causing unemployability is the Veteran's back disability. In addition, the Veteran is on narcotic medication, which cannot be ignored when considering his overall functional impairment due to service-connected disability. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability). The January 2008 medical opinion addressed the impact of the medications for the Veteran's service-connected back disability and concluded that the narcotic medication used to treat the Veteran's back disability renders him unemployable. The evidence establishes that the Veteran was last employed in May 2007. At the Board hearing, the Veteran testified that he became disabled as of June 2007. Based upon the evidence of record which shows that the Veteran's last substantially gainful employment was in May 2007 and that SSA found the Veteran to be disabled from June 1, 2007, the Board finds that the earliest date that it was factually ascertainable that the Veteran's service-connected disabilities rendered him unemployable was June 1, 2007. Accordingly, entitlement to a TDIU is granted from June 1, 2007. (Continued on next page) ORDER Prior to April 26, 2008, a disability rating in excess of 20 percent for degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine is denied. From April 26, 2008, a 40 percent disability rating is granted for degenerative disc disease (DDD) with mild herniated nucleus pulposus of the lumbar spine, subject to regulations governing the payment of monetary benefits. Entitlement to a TDIU is granted from June 1, 2007, subject to regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs