Citation Nr: 1636822 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 10-27 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 40 percent from April 30, 2008 to October 6, 2013 and from February 1, 2014 for L4-5 disc herniation, discectomy and laminectomy (a low back disability). 2. Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 2003 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of this appeal, the RO granted a rating of 40 percent for the Veteran's low back disability and assigned an effective date of April 30, 2008. In a June 2014 rating decision, the RO assigned a temporary evaluation of 100 percent for a low back disability effective from October 7, 2013 to January 31, 2014. In an August 2015 rating decision, the RO granted service connection for lumbar radiculopathy of the left lower extremity, based on mild incomplete paralysis of the sciatic nerve, and assigned a 10 percent rating effective June 13, 2015. Although the Veteran initially filed a timely notice of disagreement with the assigned rating, he did not complete his appeal by filing a VA Form 9. Thus, this matter is not before the Board. The Veteran testified at an April 2013 Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In January 2014, the Board remanded the case for further development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). As directed by the Board, the RO scheduled the Veteran for neurological and orthopedic examinations to determine the current severity of the Veteran's low back disability and any neurological abnormalities. The RO then readjudicated the claim and referred the TDIU claim to the Director, Compensation Service, for extraschedular consideration. There has been substantial compliance with the Board's remand. The Veteran appointed Kenneth Lavan as his representative in June 2009. In a May 2015 letter, Mr. Lavan withdrew from this representation appointment. The Board finds that Mr. Lavan properly revoked the June 2009 representation appointment. See 38 C.F.R. § 14.631(c). In February 2015, the Veteran appointed the Florida Department of Veterans Affairs as his representative. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's low back disability did not manifest in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes requiring bed rest prescribed by a physician. 2. The Veteran's service-connected disabilities, with a combined rating of 60 percent, rendered him unable to obtain and maintain substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 40 percent have not been met for the entire period on appeal. 38 U.S.C.A. § 1155, 5103, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5235 (2016) 2. With reasonable doubt resolved in favor of the Veteran, the criteria for assignment of an extraschedular TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. § 3.321, 3.340, 3.341, 4.1, 4.3, 4.16(b), 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2015). In a claim for an increased rating, the VCAA requirement is generic notice, that is, 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In addition, general notice is required regarding how disability ratings and effective dates are assigned. Id. In this case, the Veteran was sent a letter in June 2008 which satisfied the notice requirements. Thus, the duty to notify has been met. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, identified private treatment records, VA examination reports from July 2008 and June 2015, lay statements, and the Veteran's statements. A July 2009 VA memorandum documents that the VA attempted to obtain the Veteran's records from the Social Security Administration, that these efforts were unsuccessful, and further efforts to obtain these records would be futile. The Veteran was afforded VA examinations in July 2008 and June 2015. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The July 2008 and June 2015 VA examinations were thorough, adequate, and provided sound bases upon which to base a decision with regard to the Veteran's claim. The VA examiners each personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. Id. In addition, the VA examiners addressed the functional impact of the Veteran's low back disability upon ordinary conditions of daily life and work. As a result, the Board finds the July 2008 and June 2015 VA examinations to be adequate for rating purposes of the issue on appeal. As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duties to notify and assist in the development of the claim. Laws and Regulations - Increased Ratings The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Increased Rating for a Low Back Disability - Analysis The Veteran is in receipt of a 40 percent rating for a low back disability from April 30, 2008 to October 6, 2013 and from February 1, 2014. This disability is currently rated under 38 C.F.R. § 4.71a, DC 5235. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2015). Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2015). Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under the Formula for rating IVDS, a rating of 40 percent is warranted for incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a , IVDS Formula. For these purposes, an incapacitating episode is defined as 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. Id. at Note (1). In November 2007, a VA primary care clinic note indicated that the Veteran's pain was rated as an 8/10, waxing and waning, related to mild weakness and some episodes of numbness. The Veteran stated that he had an episode of severe weakness and paresthesias. The Veteran was afforded a VA examination in July 2008 to determine the nature and severity of his low back disability. The Veteran reported no longer having numbness or tingling in the left leg, but did complain of a mild central pain in the mid-thoracic spine that was worse with flexion. The VA examiner reported that there was no history of urinary problems, erectile dysfunction, numbness, falls, unsteadiness, fatigue, or weakness. The VA examiner noted a history of paresthesias, leg or foot weakness, decreased motion, stiffness, spasms, and pain. The pain was located in the mid-lumbar spine, described as moderate burning or pressure, and would occur for hours daily. No radiation of the pain was noted. The pain began with lifting heavy objects, walking, prolonged standing, prolonged sitting, or lying in any one position for too long. The VA examination report also indicated that the Veteran experiences severe weekly flare-ups, lasting hours. The precipitating factors were heavy lifting, prolonged sitting or standing or lying in any one position for too long, and cold or humid weather. The Veteran usually stayed at home until the pain subsides. The Veteran used a brace, and was able to walk one to three miles. The VA examiner noted that the Veteran's gait is antalgic. There was no ankylosis or abnormal spinal contour, but there was lumbar flattening. The Veteran displayed objective symptoms of bilateral spasm, tenderness, and pain with motion. The VA examiner showed minor loss of strength in the bilateral ankle dorsiflexion and great toe extension. The Veteran's reflexes were hypoactive in the biceps, triceps, brachiordialis, finger jerk, abdominal, knee jerk, and ankle jerk. Forward flexion and extension were 25 degrees, with no objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion, but no additional limitations of range of motion. The Veteran was unemployed at the time of the VA examination, and his usual occupation was listed as "manual labor." The VA examiner noted that he would have problems with lifting and carrying, as well as pain. The Veteran's low back disability prevents him from participating in sports, and has a moderate impact on chores and exercise. There was a mild impact on shopping, recreation, traveling, bathing, dressing, and toileting. During the April 2013 Travel Board hearing, the Veteran's representative stated that he does not get any compensation from the Social Security Administration. The Veteran testified that some days the pain is so bad that he has to crawl. The Veteran said that his lower back pain radiates all the way to his upper back, as well as to his left leg. He stated that he cannot bend down to touch his shoes or toes. In an April 2013 report of a private medical examination, the Veteran described his lower back pain as 8/10, with flare-ups to 10/10 every one to two months, requiring bed rest. He stated that he cannot carry or lift anything over eight to ten pounds, and denied any pain radiating down his legs. He reported that because of his pain he has difficulty sitting, standing, walking and sleeping. The physician noted that the Veteran wears a back brace, and had no difficulty getting up onto and off the examining table. On examination, the physician noted mild paralumbar tenderness. There was no kyphosis or scoliosis. Forward flexion was 70 degrees. An August 2013 VA treatment note indicated that the Veteran reported intermittent urinary incontinence and constipation, but described it as infrequent. A lumbar spine MRI showed new onset L4-L5 disc herniation with compression of the L5 nerve root. The Veteran was afforded a VA spine examination in June 2015. The Veteran reported significant flare-ups approximately three to four times per month that may last one to two days. He also reported that he has decreased ambulation tolerance and his leg becomes uncomfortable in a bent position during exacerbations. Forward flexion was 60 degrees. Painful motion was noted on forward flexion, but there is no indication as to the point where pain began. There was no additional loss of function or range of motion after three repetitions. While the Veteran had muscle spasm, it did not result in abnormal gait or abnormal spinal contour. The VA examiner noted that the Veteran had less movement than normal due to ankylosis, adhesions, etc., and disturbance of locomotion. However, the VA examiner also stated that there is no ankylosis of the spine. The VA examiner stated that the Veteran had no other neurological abnormalities or findings related to the low back condition. Based on the above, the lay and medical evidence of record establishes that the Veteran's low back disability warrants a rating of 40 percent, and no higher, for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7 (2015). The worst range of motion report was in the July 2008 VA examination, in which flexion was limited to 25 degrees. This limitation of flexion is consistent with the criteria for a 40 percent disability rating, as the forward flexion is less than 30 degrees. The July 2008 VA examination report indicated that the Veteran had no ankylosis. While the June 2015 VA examination gave inconsistent statements regarding whether the Veteran has ankylosis of the spine, it does not indicate that the Veteran has unfavorable ankylosis of either the entire thoracolumbar spine or the entire spine. Therefore, the Board finds that the Veteran does not have unfavorable ankylosis of either the entire thoracolumbar spine or the entire spine. The lay and medical evidence of record indicates that the Veteran has experienced consistent pain and frequent incapacitating flare-ups. The Board has also considered application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca for the entire appeal period, specifically the additional limitations of motion due to pain, fatigability, and weakness, in reaching the finding that a disability rating in excess of 40 percent is not warranted. Although the record contains reports that the Veteran experienced pain during movement testing, such findings do not provide for rating in excess of 40 percent in this case. Pain during range of motion testing was indicated in June 2015 VA examination report. However, the Board notes that the Veteran does not have unfavorable ankylosis. The DeLuca factors go to additional loss of function caused by limitation of motion of the entire thoracolumbar spine or the entire spine, and the Veteran is already receiving the maximum schedular rating for limitation of range of motion without unfavorable ankylosis. Therefore, a 40 percent rating under DC 5235 and 38 C.F.R. § 4.59 is appropriate, and a higher rating is not warranted. With respect to the Veteran's claim for a higher evaluation of his low back disability as manifested neurologically, the Board must consider the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath, 1 Vet. App. at 595. The Board notes that service connection was granted for radiculopathy of the left lower extremity, with a 10 percent rating from June 13, 2015, during the pendency of this appeal. He has not since appealed this rating assignment. Therefore, the Board will not address the issue of radiculopathy of the left lower extremity. In an April 2013 report of a private medical examination, the private physician opined that it is least as likely as not that the Veteran's radiculopathy of the right lower extremity is secondary to his service-connected low back disability. He noted the complaints documented in the Veteran's medical treatment records occasional numbness of both legs made worse with prolonged standing and walking for over six years. He also noted the Veteran's complaints of his legs freezing up and not being able to walk for seconds to minutes. In June 2015, the Veteran was afforded a VA peripheral nerves examination. The VA examiner diagnosed him with lumbar radiculopathy, and noted mild incomplete paralysis of the left sciatic and femoral nerves. The Veteran's right nerves were all described as normal. In the June 2015 VA spine examination, the Veteran's right straight leg test was negative. The VA examiner found no signs or symptoms radicular pain or radiculopathy of the right lower extremity. The VA examiner concluded that the Veteran's right lower extremity was not affected by radiculopathy. While the April 2013 private medical opinion diagnosed the Veteran with right lower extremity radiculopathy secondary to the service-connected low back disability, the physician relied on lay reports of symptomatology in making this diagnosis and opinion as to etiology. The opinion in the April 2013 private medical opinion is outweighed by the objective medical testing results contained in the June 2015 VA spine and peripheral nerves examination reports, which found that the Veteran did not have right lower extremity radiculopathy. Therefore, the weight of the evidence of record does not indicate that a separate rating for neurological symptoms of the right lower extremity is appropriate. An April 2012 VA rehabilitation consultation note indicated that the Veteran "did not describe associated alteration of bowel or bladder sphincter functions." An August 2013 VA treatment note indicated that the Veteran reported intermittent urinary incontinence and constipation, but it is infrequent. An August 2013 VA neurosurgery outpatient note indicated that the Veteran denied bowel and bladder incontinence. The June 2015 VA spine examiner stated that the Veteran had no other neurological abnormalities or findings related to the low back condition. The Board finds that the Veteran's statements regarding bladder impairment have been inconsistent, including conflicting statements within a single month. Therefore, the weight of the evidence of record does not indicate that a separate rating for bladder incontinence secondary to the low back disability is appropriate. For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds the weight of evidence does not support a disability rating in excess of 40 percent for a low back disability. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7 (2015). The Board has considered whether a higher rating for the lumbar spine disability may be granted under the Formula for rating IDVS on the Basis of Incapacitating Episodes. However, there is no competent evidence of record indicating that Veteran experienced incapacitating episodes-a period of bed rest prescribed by a physician and treatment by a physician-as a result of his lumbar spine disability. See 38 C.F.R. § 4.71a. Therefore, a higher disability rating for the lumbar spine is not assignable under this provision of the rating schedule. Entitlement to an Extraschedular TDIU - Analysis During the period under appeal, the Veteran's service-connected disabilities included a low back disability, rated 40 percent from April 30, 2008, 100 percent from October 7, 2013, and 40 percent from February 1, 2014; depression with insomnia, rated 30 percent from April 30, 2008; lumbar radiculopathy of the lower left extremity, rated 10 percent from June 13, 2015; residuals right scrotal varicocelectomy, with a noncompensable rating from April 6, 2005; and surgical scar, secondary to the low back disability, with a noncompensable rating from October 7, 2013. The Veteran's combined disability rating for compensation purposes was 20 percent from April 6, 2005, 60 percent from April 30, 2008; 100 percent from October 7, 2013, and 60 percent from February 1, 2014. Statutory criteria set forth in 38 C.F.R. § 4.16(a) have not been met. Generally, disability rating are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in January 2014. The AOJ referred the claim for an extraschedular rating to the Director. In an August 2015 decision, the Director denied an extraschedular rating, and the AOJ continued the denial in a supplemental statement of the case dated the same month. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Recently, the Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Of record is a July 2015 Memorandum from the Appeals Management Center (AMC) to the Director, Compensation Service, referring the extraschedular TDIU pursuant to the January 2014 Board remand. In August 2015, the Director, Compensation Service denied an extraschedular TDIU. The Director stated that although the Veteran has been unemployed, the medical evidence of record fails to show that manual or sedentary work is precluded. The Director noted that private medical records from February 2012 state that the Veteran is unemployable, but the records show an ability to sit for 45 minutes and stand for 20 minutes at a time. They also show an ability to sit 3-4 hours, stand 2-3 hours and walk two hours in an eight hour day. The records also show that frequent breaks would be needed and that the Veteran may miss more than four or more days of work per month. The Director also cited the June 2015 VA examiner's opinion that the Veteran could perform mostly sedentary work. . In an October 2006 letter, the Veteran's VA primary care physician opined that he "is considered to be totally and permanent disabled from seeking and/or sustaining any type of employment due to" his back condition and post-traumatic stress disorder (PTSD). No rationale for this opinion was given. The Board notes that while the Veteran is not in receipt of service-connection for PTSD, he is in receipt of service-connection for depression to include insomnia, claimed as PTSD. A January 2008 treatment note indicated that the Veteran's low back pain was always present, with a 7/10 intensity, associated with occasional numbness of both legs. The pain was worse with prolonged sitting or lying down, and medication only provided partial relief. In July 2008, the Veteran was afforded a VA psychiatric examination. He reported experiencing daily back pain, from mild to severe. The VA examiner noted that he had mild insomnia, getting four to six total hours of sleep each day, and sleep was affected by back pain. The Veteran's impulse control was described as fair, as he often loses his temper over minimal stressors. The Veteran was not unemployed at the time. He worked for a temp agency, but had not worked for four months. He stated that his employability was limited due to his back pain. He was diagnosed with depression, and polysubstance abuse in sustained remission for 10 months. A GAF score of 70 was assigned. The VA examiner noted that the Veteran had ideas at times to be physically assaultive towards others who have wronged him. During the April 2013 Travel Board hearing, the Veteran stated that the pain medicine for his back makes him sleepy, so he stays in bed a lot. He indicated that he had severe flare ups four to five times a week. He stated that during flare-ups he just lies on his back and cannot do any activities. His representative noted that he had not worked at all since leaving active service. He also stated that he tried to go to school to become a dental assistant, but had to drop out due to his back pain. The Veteran submitted an April 2013 private vocational assessment report. The vocational rehabilitation consultant noted that the Veteran had briefly worked as a warehouse worker after service, but was unable to perform the physical requirements of this job due to chronic back pain. He also attempted to work as a security guard at the homeless shelter, but lost his position due to an argument with the shelter's personnel. The consultant noted that prior to service, the Veteran had worked in various physically oriented jobs and does not have any formalized vocational training. Thus, she concluded that he would not be qualified for semi-skilled or skilled occupations that do not require physical exertion. Based on his prior work history, chronic back and bilateral leg pain, and irritability and social impairment due to depression, she opined that he should be considered unemployable. The June 2015 VA peripheral nerves examiner noted that the Veteran may not be able to tolerate prolonged ambulation or standing over an hour at a time due to increasing discomfort. The June 2015 VA spine examination report indicates that the Veteran has decreased ambulation tolerance and his leg becomes uncomfortable in a bent position during exacerbations. The VA examiner opined that the Veteran's low back disability did not preclude him from maintaining employment, given accommodations of a relatively (greater than 75% of the time) sedentary position. The Veteran's entire work history consists of manual labor jobs. He stated that he attempted to go to school to become a dental assistant, but had to drop out due to his back pain. The Veteran stated that his service-connected low back pain, depression, and radiculopathy of the lower left extremity have caused him to be unable to work, as he is unable to walk, stand or sit for long periods of time due to low back and lower left extremity pain, the Board finds this testimony competent and credible. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (whether a veteran can perform the physical and mental acts required by employment is an issue about which a lay person may provide competent evidence; "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Despite the June 2015 VA examiner's opinion that the Veteran can perform sedentary work, the Board finds that the Veteran's chronic sleep impairment, chronic back and bilateral leg pain, and irritability and social impairment due to depression indicate that his ability to transition to sedentary work would be very limited. Given the significant impact of the service-connected physical symptoms on the Veteran's ability to work and perform routine physical tasks that would likely be required for employment, and his limited occupational background, the evidence is at least evenly balanced as to whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to a schedular disability rating in excess of 40 percent for L4-5 disc herniation, discectomy and laminectomy (a low back disability) from April 30, 2008 to October 6, 2013 and from February 1, 2014 is denied. Entitlement to an extraschedular TDIU is granted, subject to controlling regulations governing the payment of monetary awards ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs