Citation Nr: 1613423 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 08-20 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for a low back condition for accrued benefits purposes. 2. Entitlement to an initial compensable disability rating for hemorrhoids for accrued benefits purposes. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for accrued benefits purposes. ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1981 to February 1986. The Veteran died in April 2010. The Veteran's spouse has been substituted as the appellant. Of record is a June 2011 RO memorandum/determination (among other documents of record) showing that the RO found that the Veterans' spouse met the criteria for substitution in the matter of the Veteran's appeal which was pending at the time of his death. See 38 U.S.C.A. § 5121A. These matters come to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By rating decision in October 2010, the appellant's claim of service connection for the cause of the Veteran's death was denied by the RO. The appellant initiated an appeal of this decision, but expressly withdrew that appeal during the May 2012 DRO conference (documented in the conference report) and confirmed the withdrawal in an additional written statement submitted in May 2012. The issue is not in appellate status for Board review. The Board also notes that this appeal previously included the issues of entitlement to service connection for radiculopathy of each lower extremity, but these claims were fully granted by a July 2009 RO rating decision awarding service connection for radiculopathy of both lower extremities. Furthermore, a June 2012 RO rating decision granted 20 percent disability ratings for radiculopathy of each lower extremity; the appellant expressly accepted those ratings and withdrew any appeal for higher ratings for lower extremity radiculopathy in a May 2012 written statement and in the report of the May 2012 DRO conference. No issues concerning radiculopathy of the lower extremities are currently in appellate status for Board review and these conditions will not be addressed below in the Board's discussion of the Veteran's lower back condition. The issues on appeal were remanded by the Board in March 2013 for further development; they have since returned for adjudication. The Board concludes that there has been substantial compliance with the remand directives, as new and wholly adequate VCAA notice was sent to the appellant, all outstanding VA treatment records were obtained and associated with the claims file, and the appropriate inquiry was made into whether the appellant sought a Board hearing. As such, the Board is proceeding with its adjudication of these claims. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In addition to the remand, the Board granted the Veteran service connection for lumbar disc disease and a psychiatric condition in March 2013. In a July 2013 rating decision, the RO added lumbar disc disease to the Veteran's already service-connected lumbar spine strain; the low back condition as a whole continued to be rated as 20 percent disabling. The RO assigned him a 30 percent rating for his psychiatric condition. The appellant did not appeal this rating or the effective date assigned; thus this condition is no longer on appeal and will not be considered below. The Board notes that the appellant was previously represented by an attorney in this matter. However, in October 2012, the attorney submitted formal written notice withdrawing from representation of the appellant. Following the March 2013 remand, the appellant was sent multiple letters inquiring whether she sought new representation. To date, she has not responded to any of these letters. Thus, the Board is proceeding with these matters under the assumption that the appellant no longer wished to be represented in these matters. FINDINGS OF FACT 1. It is factually ascertainable from the evidence of record that the Veteran's service-connected low back condition resulted in forward flexion of the thoracolumbar spine to be limited to less than 30 degrees. 2. There is not any medical evidence of record indicating the Veteran's hemorrhoids were large, thrombotic, or reducible; or evidence that the condition resulted in secondary anemia or fissures. 3. The evidence is in a state of equipoise as to whether his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are met for a 40 percent rating for the Veteran's lower back condition for accrued benefits purposes as of April 12, 2007. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2015). 2. The criteria are not met for an initial compensable rating for the Veteran's hemorrhoids for accrued benefits purposes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.7, 4.114, Diagnostic Code 7336 (2015). 3. The criteria are met for a TDIU for accrued benefits purposes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. The Board concludes that the RO has substantially satisfied its duty to notify as required by the VCAA. Regarding the claim for an initial compensable rating for hemorrhoids, the VCAA notice obligations were fully satisfied once service connection was granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated). The Veteran was provided proper VCAA notice in May and August 2007 that fully informed him of how to establish a higher rating for his lower back condition. He was also issued a subsequent statement of the case (SOC) and later supplemental statements of the case (SSOCs) that also informed him of the applicable regulations. Following the March 2013 Board remand, the appellant was sent another VCAA notice letter in July 2013 that informed her of the evidence needed to substantiate her increased ratings and TDIU claims. She has not alleged any notice deficiency that is unduly prejudicial. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Additionally, the Board concludes that the duty to assist has also been met with regards to his claim for higher ratings. The totality of the Veteran's VA and private treatment records has been obtained, as well as his records from the Social Security Administration (SSA). He was given appropriate VA examinations before his death at which the examiners reviewed the entire claims folder. Contained in the examination reports are relevant opinions by the examiners concerning the severity of his lower back condition. The examinations addressed the appropriate rating criteria in the applicable diagnostic codes (DCs). Unfortunately, the Veteran was never given a VA examination for his service-connected hemorrhoids before he died. However, based on the medical evidence of record and the Veteran's statements, there is ample evidence to assign the Veteran a rating under the applicable diagnostic code. There is no indication that there is any relevant evidence outstanding for these claims and the Board will proceed with consideration of the appeal. II. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. When there is a question as to which of two evaluations shall be applied, the higher evaluation 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As the claim involving the Veteran's hemorrhoids concerns the assignment of an initial rating, the proper scope of the evidence includes all medical or other evidence submitted in support of his claim since the effective date of his award. If there have been variances in the severity of his disability, then the rating must be "staged" to compensate him for this change in the level of his disability over time. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, such as the case with the Veteran's lower back claim, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 4.2. The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The effective date for an increase in rating for a disability is generally the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). With respect to disability compensation, the earliest effective date that may be assigned is the date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date, otherwise the effective date is the date of claim. 38 C.F.R. § 3.400(o)(2). The U. S. Court of Appeals for Veteran's Claims (Veterans Court/CAVC) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2). See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). The Federal Circuit Court has reaffirmed that "the plain language of [section] 5110(b)(2)...only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board however is charged with the duty to assess, not only the competence, but also the credibility and ultimate weight (probative value) given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In deciding these claims, the Board has reviewed all of the relevant evidence in both the physical claims file and electronic file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or Veteran or obtained on their behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). a. Low Back The Veteran filed a claim for a rating higher than 20 percent for his service-connected low back disability in April 2007. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. His condition was rated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated. Normal ranges of motion of the thoracolumbar spine are as follows: flexion to 90 degrees, extension to 30 degrees, lateral flexion from 0 to 30 degrees bilaterally, and lateral rotation from 0 to 30 degrees bilaterally. 38 C.F.R. § 4.71a, Plate V. Alternatively, the Board must also consider whether a higher rating may be assigned under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under this formula, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. For purposes of assigning evaluations under 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Turning now to the facts of the case, there is a September 2007 Social Security Consultative Report. There, the Veteran complained of constant back pain. There was tenderness to palpation in the low lumbar area. The Veteran indicated he could not perform forward flexion. He did rightward side bending to 10 degrees and leftward side bending to 20 degrees. He underwent a VA examination in October 2007. The claims file was reviewed by the examiner. The examiner denied that there was a history of hospitalization or surgery. There was decreased motion, spasms, and pain associated with the lower back. The pain was described as shooting, stabbing, and aching. It was rated as "moderate" and affected the Veteran constantly. The examiner denied that the Veteran had any incapacitating episodes for his thoracolumbar spine during the past year. The Veteran's posture and head position were normal, while he walked slowly and purposefully using a cane. There was no abnormal spinal curvature. Motor, reflex, and sensory examinations were normal. Ankylosis was not present. Range of motion testing was as follows: forward flexion to 80 degrees, with pain at 60 degrees; extension to 20 degrees, with pain at 15 degrees; right lateral flexion to 25 degrees with pain at 25 degrees; left lateral flexion to 22 degrees with pain at 22 degrees; right and left lateral rotation to 30 degrees with pain at 30 degrees. There was pain after repetitive use for all movements, but no additional loss of motion. The final diagnoses were residuals of a lumbar strain and degenerative changes in both the upper and lower spine segments. He underwent another VA examination in June 2009. The claims file was reviewed. A summary of past MRIs is included. The examiner marked that the Veteran did suffer from erectile dysfunction, but indicated this was unrelated to the spine condition. There was fatigue, decreased motion, stiffness, weakness, spasms, and pain associated with his low back condition. The pain was described as constant and severe; it was rated as a nine out of ten. The Veteran indicated he suffered from severe flare-ups of his spinal conditions every two to three weeks, lasting up to two days. During a flare-up, both standing and sitting were painful and he felt incapacitated and unable to run his hot dog business. His gate was antalgic with use of a cane. He did not have any abnormal spinal curvatures. There was tenderness and pain with motion along the thoracic sacrospinalis. Reflex and motor examinations were normal. His lower extremities were hypoactive on the sensory examination with decreased sensation along the foot and ankle. His range of motion measurements for the thoraco-lumbar spine were as follows: flexion to 50 degrees, with pain at 10 degrees; extension to 5 degrees, with pain at 5 degrees; left and right lateral flexion to 20 degrees, with pain at 10 degrees; left and right lateral rotation to 25 degrees, with pain at 20 degrees. There was objective evidence of pain on motion, but no additional limitations after repetitive use testing. There was no fatigue, weakness, or incoordination noted. The final diagnoses were lumbar spine strain, mild bilateral radiculopathies, and degenerative joint disease of the lumbar spine. These conditions had "significant effects" on his usual occupation, which he had not worked in over five years, as he had problems lifting and carrying, suffered from weakness and/or fatigue, and had decreased strength. There were effects on daily activities, including severe effects on chores, shopping, exercise, recreation, and traveling. The conditions prevented sport participation. There were mild to moderate effects on feeding, bathing, dressing, toileting, and grooming. There is a January VA treatment record indicating that the Veteran experienced a worsening of his lower back pain. It indicates that the Veteran had poor range of motion associated with his lumbar spine. There is a January 2010 MRI report of the Veteran's lumbar spine performed at Altec Diagnostic Imaging. The final impression was desiccation, mild bulging, spinal stenosis, herniation, osteophyte formation, and mild right neural foraminal narrowing. After review of the above, and taking into account the DeLuca factors, the Board is granting the higher 40 percent rating for the Veteran's lumbar spine condition. At his June 2009 VA examination, he experienced pain at 10 degrees when performing forward flexion, which is under the 30 degree threshold contemplated by the 40 percent rating of the General Rating Formula. At his September 2007 SSA consultation, he could not even perform the flexion movement. This represents the maximum rating he can get based on limitation of motion. While it is true that he exhibited forward flexion October 2007 up to 80 degrees (with pain at 60 degrees), the Board is resolving all doubt in the appellant's favor and granting him the 40 percent rating. There is earlier evidence in the form of a July 2004 letter from the Veteran's treating VA physician that the Veteran was able to flex his lumbar spine to a maximum of 10 to 15 degrees in forward flexion. Thus, there is ample evidence that the condition resulted in flexion much worse than 60 degrees years before and after that examination. The Board is granting this 40 percent rating effective April 12, 2007, the date of his claim on appeal. While the July 2004 letter does indicate a worsening of his spine condition at an earlier date, the Board notes that this was over a year prior to the date of the claim. In such situations, the effective date of the increase is the date of the claim. See Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). The Board must deny him a rating higher than 40 percent for purposes of accrued benefits, however. There is no medical evidence in the claims file indicating that the Veteran has ever been diagnosed with ankylosis of his spine, including at any of the VA examinations of record. Thus, he is not warranted a higher rating under the General Formula. Similarly, there is no evidence that his spine condition has resulted in incapacitating episodes such that he required bedrest during the appellate period; therefore he is not warranted a higher rating under the alternative formula. Thus, the preponderance of the evidence is against assigning a rating higher than 40 percent for accrued benefits purposes during the entirety of the appellate period. b. Hemorrhoids The Veteran was granted service connection for hemorrhoids in a May 2008 rating decision; he was assigned a non-compensable rating under 38 C.F.R. § 4.114, DC 7336 effective April 12, 2007. He appealed for an even higher rating. Under DC 7336, a noncompensable rating is warranted for mild or moderate hemorrhoids; a 10 percent rating is warranted for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; and a maximum 20 percent rating is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. There is a November 2006 VA treatment note indicating that the Veteran suffered from "rectal bleeding D/T hemorrhoids." This was "resolving" with sitz baths, but was complicated by Lortab. Upon examination, there were no masses or gross hemorrhoids palpable and there was no blood. There is a separate November 2006 VA note that indicated the presence unspecified hemorrhoids without mention of complication. In a June 2008 statement, the Veteran indicated that he suffered from bleeding from his rectum and that this caused him embarrassment. He stated he self-treated this condition with over-the-counter medication on the advice of his physician over the years. He indicated that he did not seek much medical attention for the condition. After reviewing the relevant evidence pertaining to this claim, the Board must deny a compensable rating for the Veteran's service-connected hemorrhoids for accrued benefits purposes. While sympathetic to the Veteran's statements regarding this condition before his death, the medical evidence of record does not establish that he had large or thrombotic hemorrhoids that were irreducible, which is necessary for the higher 10 percent rating. Furthermore, there is no evidence of any secondary anemia or fissures, which are necessary for assignment of the maximum 20 percent rating under the applicable diagnostic code. There is very little medical evidence of record pertaining to his hemorrhoids. While this evidence does document complaints regarding the condition, the Board notes that the November 2006 VA treatment record indicated that there were no masses or gross hemorrhoids that were palpable. While the Veteran is certainly competent to discuss any rectal bleeding, medical evidence of the symptoms that the higher ratings contemplate is needed to grant a higher rating for this condition. Without such evidence, the Board concludes that the condition was fully contemplated by the noncompensable rating under DC 7336 which contemplated mild or moderate hemorrhoids. The Board has considered the application of the alternative DCs under the current version of the regulation in an effort to determine whether a higher rating may be warranted for the Veteran's hemorrhoids, but finds none are raised by the medical evidence of record. In summary, the preponderance of the evidence is against the assignment of a compensable initial disability rating for the service-connected hemorrhoids at any time during the appeal period. Thus, the claim for a higher rating for accrued benefits purposes is denied. c. Extraschedular In reaching the above decisions, the Board also has considered whether an extraschedular rating is warranted for both the Veteran's lower back and hemorrhoid conditions for accrued benefits purposes. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. See 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 to 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. Id. The Board finds that there is no basis for further action on this question as there is no indication of an exceptional disability picture such that the schedular evaluations for the low back condition or the hemorrhoids are inadequate. See Thun at 115. His back pain, stiffness, fatigue, limited motion, tenderness, muscle pain, and spasms were fully contemplated by the General Formula and 38 C.F.R. §§ 4.40 and 4.45. Likewise, his hemorrhoids and the associated discomfort and bleeding were fully contemplated by 38 C.F.R. § 4.114, DC 7336. Finally, the Board notes that under Johnson v. McDonald, 762 F. 3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. III. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). After the above grant of a 40 percent rating for the Veteran's lower back condition, he met the schedular criteria found in 38 C.F.R. § 4.16(a). While the regulations do not define "substantially gainful occupation", VA adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the similar term of "substantially gainful employment" 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 Faust v. West, 13 Vet. App. 342 (2000) (defining "substantially gainful employment" as an occupation that provides an annual income that exceeds 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....) Prior to his death, the Veteran alleged that his service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. He variously stated that his low back condition and secondary depression caused him to lose his federal employment as a security screener with the Department of Homeland Security. In support of his claim, he submitted the June 2004 Notice of Proposed Removal detailing his loss of employment. The notice detailed the Veteran's work restrictions associated with his lower back condition and eventually concluded that due to these limitations, the Veteran was unable to perform his assigned duties. It was thus decided that he be removed from Federal service to ensure the efficiency of the organization. Included in the claims file is a July 2004 letter from the Veteran's treating VA physician. It provides a summary of the Veteran's ongoing back problems. The physician stated that in April 2004, he thought that the Veteran "might be able to perform work with light duty restrictions," but "[u]nfortunately, he was unable to do so." The letter then stated that the Veteran was recently unemployed because he was unable to perform work of any type due to excruciating pain he felt as a result of prolonged standing, walking, and sitting. Medication was prescribed, but the physician did not see "a very good prognosis" with the spine symptoms. He concluded by stating, "it is my professional opinion that [the Veteran] is unable to seek gainful employment...I believe the disability of his lower back is complete and total." The Board finds this opinion probative on this issue of entitlement to a TDIU for accrued benefits purposes. There is no evidence, medical or otherwise, to the contrary as of April 2010, the date of the Veteran's death (i.e., evidence specifically indicating the Veteran's service-connected disabilities do not render him unemployable). 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). Certainly then, absent this type of contrary evidence, and considering the positive expert opinion of record, the evidence is at least in equipoise as to whether he was unemployable due to his service-connected conditions. Accordingly, the appellant must be afforded the benefit of the doubt and this claim for a TDIU for accrued benefits purposes is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. As the decision above represents a complete grant of the benefit sought on appeal with regard to the TDIU issue, any deficiency in VA's compliance with the duty to notify and assist is nonprejudicial and any further discussion of VA's duties is not necessary. 38 C.F.R. § 20.1102. ORDER Entitlement to a 40 percent rating for accrued benefits purposes, but not one higher, for the Veteran's service-connected low back condition is granted. Entitlement to an initial compensable rating for accrued benefits purposes for the Veteran's service-connected hemorrhoids is denied. Entitlement to a TDIU for accrued benefits purposes is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs