Citation Nr: 18144146 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 12-30 806 DATE: October 25, 2018 ORDER Entitlement to a rating in excess of 20 percent from March 17, 2011 to May 23, 2017, and in excess of 40 percent thereafter for intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury is denied. Entitlement to a 10 percent evaluation, but no higher, from May 24, 2017, and no earlier, for neurological disorder of the right lower extremity associated with intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury, is granted. Entitlement to a 20 percent evaluation, but no higher, from May 24, 2017, and no earlier, for neurological disorder of the left lower extremity associated with intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury, is granted. Entitlement to a total disability rating based on unemployability (TDIU) prior to December 6, 2000 is denied. FINDING OF FACT 1. At no time during the rating period on appeal has the Veteran had ankylosis of the spine. 2. Between March 17, 2011 and May 24, 2017, the Veteran has had greater than 30 degrees of forward flexion of his spine and has not had incapacitating episodes. 3. From May 24, 2017, the Veteran’s back disability has been manifested by mild right lower extremity radiculopathy, and moderate left lower extremity radiculopathy. 4. The Veteran does not meet the schedular requirements for a TDIU prior to December 6, 2000, and referral to the Director, Compensation Service for consideration of a TDIU on an extra-schedular basis is not warranted. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent from March 17, 2011 to May 23, 2017, and in excess of 40 percent thereafter for intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury have not been met. 38 U.S.C. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.59, 4.71a, DC 5243. 2. The criteria for a disability evaluation of 10 percent, but no higher, from May 24, 2017, and no earlier, for neurological disorder of the right lower extremity associated with intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury, have been met. 38 U.S.C. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.59, 4.124a, DC 8520. 3. The criteria for a disability evaluation of 20 percent, but no higher, from May 24, 2017, and no earlier, for neurological disorder of the left lower extremity associated with intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury, have been met. 38 U.S.C. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.59, 4.124a, DC 8520. 4. The criteria for a TDIU prior to December 6, 2000 have not been met. 38 U.S.C.§§ 1555, 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1966 to September 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The procedural history has been addressed most recently in a November 2017 Board remand and will not be addressed again herein. In April 2016, a witness (E.T.) testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were most recently before the Board November 2017 and were remanded for a retrospective opinion. The Veteran’s attorney contends that the 2018 opinion obtained is inadequate; however, the Board disagrees. The 2018 clinician reviewed all available evidence, provided an opinion to the extent reasonably possible, and stated that a further opinion could not be provided without resort to mere speculation due to an absence of further information in the record with regard to flare-ups, and an absence of additional information with regard to functional impact. Thus, the clinician complied with the remand directives and provided an opinion to the extent reasonably possible. No further development is necessary. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the dates of the clinical reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports higher ratings during the rating period on appeal. Reference to the Veteran’s disabilities at issue is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities on appeal that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. As is discussed in further detail below, the preponderance of the evidence is against the claims; thus, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 1. Entitlement to a rating in excess of 20 percent from March 17, 2011 to May 23, 2017, and in excess of 40 percent thereafter for intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury. From March 17, 2011 to May 23, 2017 The Veteran would be entitled to a rating in excess of 20 percent if his symptoms more nearly approximated forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or if he had incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. The Board acknowledges that the Veteran had chronic pain due to his service-connected back disability; however, the evidence of record does not support that his symptoms more closely approximate a rating in excess of 20 percent. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). A March 2011 VA examination report reflects that the Veteran reported that he has pain, weakness, and stiffness of the back. He also reported that he gets one flare-up per month, and that the flare-up consists of severe pain and lasts three to seven days. Precipitating factors included lifting, moving things around, driving longer than 30 minutes in a car, trying to do yard work, attempting to push a grocery cart, prolonged sitting, standing, or walking. He stated that nothing relieves the pain other than rest and time. The extent of additional limitation during a flare-up was 100 percent. It was noted that urinary frequency was not related to IVDS (it was due to an enlarged prostate). The Veteran reported constant daily pain. Upon testing, he had flexion from 0 to 60 degrees and did not have any weakness, atrophy, or spasm. The Veteran’s range of motion is against a finding of a rating in excess of 20 percent because of his significant range of flexion. In addition, although, he reported flare-ups which he treated with rest and time, the evidence does not support a finding that he was actually prescribed bed rest by a physician. The Board has considered the Veteran’s flare-ups (to include severity and frequency) but they are not indicative that they were so frequent as to more nearly approximate to the criteria for a higher rating. In this regard the Board notes that the Veteran reported that sometimes his pain gets so bad that he considers going to the emergency room but that he does not go because he does not think that the clinicians can help him. The records reflect that the only medication which the Veteran uses is Naprosyn and that he has declined other treatment. The Board finds that if the flare-ups were so significant and frequent as to cause chronic limitation of flexion to 30 degrees or less or ankylosis, it would be reasonable for the Veteran to seek additional or more frequent treatment, to possibly include a different medication. The records reflect that the Veteran reported that he has a flare-up when he lifts, pushes, or pulls something that is more than 15 pounds in weight. However, the Board finds that these flare-ups likely do not occur on a daily basis, as it is something which the Veteran could reasonably avoid doing and still maintain activities. Although the Veteran stated that he has difficulty getting in and out of the shower, and gets an exacerbation if he moves too quickly, he is still able to mow the lawn for 30 minutes at a time, and do some shopping and other activities as noted below, and reasonably could avoid doing activities (moving too quickly) so as to avoid flare-ups. Additionally, as noted below, later records reflect the Veteran has been able to do physical activities to include biking and restoring cars; thus, the precipitating factors for his flare-ups seems to be limited to only a few motions. The Board attempted to develop additional evidence relevant to this period when it requested a retrospective medical opinion in the 2017 remand, to include further assessment of the Veteran’s ranges of motion including with consideration of flare-ups and weight-bearing. However, the 2018 medical opinion provider concluded that such opinions were not possible because there is no conceptual or empirical basis for making such a determination without directly observing function under the specified conditions. In other words, the contemporaneous record did not provide the necessary range of motion information regarding any difference on repeated use or during flare-ups or between active range of motion and passive versus weight-bearing versus non-weight bearing. As the examiner explained the inability to provide further retrospective opinion by identifying precisely what facts cannot be determined and given that there is no indication of other records that might reasonably illuminate the medical analysis, no further development is necessary. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). In addition to the examination report, the Board has also considered the clinical records. An October 2011 private record reflects that the Veteran reported pain 100 percent of the time and takes pain medication on a limited basis secondary to side effects. It was noted that he “does his best to get through the day but he does have limited sitting, standing, and walking tolerance,” and this inability to sit, stand, or walk for a significant period of time was his determining factor in his disability. Upon examination, he had flexion to 50 degrees. While this degree of range of motion is less than shown in March 2011, it is still significantly more than the 30 degree limitation required for a 20 percent rating. Additional clinical records note that his pain regimen was Naprosyn and he had days during which he was asymptomatic (April 2013, June 2014), that he stays active with biking (June 2014), that the pain was controlled with Naprosyn (October 2014), that he was able to continue with his hobby of restoring cars, which the Board finds would involve physical labor (August 2015), that his back pain was manageable (September 2016), he was able to do yardwork (November 2016), and that he took Naproxen on an as needed basis and stays active (December 2016). The records also note that he declined pain management (private September 2016 record), and declined physical therapy or shots with pain management but would consider TENS (February 16, 2017). A February 2017 record reflects that the Veteran reported that he felt that even though he had a worsening of back pain over the last few years, he felt that the Naproxen had been helping and when he was not taking it, he had more pain (February 16, 2017). The Board has considered the Veteran’s complaints and the clinical findings, and finds that the preponderance of the evidence is against a finding of flexion limited to 30 degrees or less and against a finding of incapacitating episodes of at least four weeks in a 12-month period as defined by VA regulation during this period. The Board has also considered whether the Veteran has objective neurological abnormalities which would warrant separate and/or higher ratings. The Veteran is in receipt of a separate 10 percent rating for left lower leg extremity symptoms under DC 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe paralysis; a 60 percent rating is warranted for severe paralysis, with marked muscular atrophy; and a maximum 80 percent rating for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). The terms “mild,” “moderate,” and “severe” under applicable diagnostic codes are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The term “incomplete paralysis,” with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. See “note” at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124a. The March 2011 VA examination report reflects that the Veteran reported intermittent pain and numbness (pins and needles) down the back of his left thigh to the knee. Upon examination, he had normal vibration testing and normal position sense, but had decreased pain or pinprick and light touch in the left thigh, and dysesthesias of the thigh which was intermittent. For both lower extremities, the Veteran’s reflex results revelated normal knee jerk, normal ankle jerk, and normal plantar flexion. The Board finds that the evidence does not demonstrate incomplete paralysis that is “moderate”, “moderately severe” or “severe” in degree. The Veteran’s disability has not been shown to be more than wholly sensory; thus, the rating should be for mild, or moderate, at most. The Board finds that the Veteran still has the ability to sense pinprick, and light touch, albeit diminished, and his symptoms of numbness, tingling, and burning are not constant; thus, the Board finds that it more nearly approximately mild rather than moderate. As such, a 10 percent rating is warranted. The Veteran has also reported urinary problems but the examiner found that those complaints were unrelated to his service-connected back disability and were instead related to his enlarged prostrate. From May 24, 2017 The Veteran’s back disability is rated as 40 percent disabling from May 24, 2017. He would be entitled to a higher rating if he had unfavorable ankylosis of the entire thoracolumbar spine. A May 2017 VA examination report reflects that the Veteran had forward flexion to 40 degrees, and had bilateral lateral flexion to 10 degrees, and bilateral rotation to 15 degrees; thus, he did not have ankylosis. (The examiner noted that passive range of motion testing was not reasonably possible.) The Veteran had pain on non-weight bearing testing of the back. There was no additional loss of range of motion after repetitive use testing. The examiner opined that repeated use over time would cause flexion to be limited to 35 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 10 degrees. With flare-ups, the Veteran was expected to have flexion limited to 30 degrees, lateral flexion limited to 0 degrees, and lateral rotation limited to 5 degrees. He had no extension at any time. Muscle strength testing of the lower extremities was normal for the hip, knee, ankle, and great toe bilaterally. He did not have any muscle atrophy. He had right knee and ankle hypoactive reflexes, and decreased light touch sensation testing results. The Veteran had, for the right lower extremity, no constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. For the left lower extremity, he had no constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner found that the Veteran had mild right lower extremity radiculopathy, and moderate left lower extremity radiculopathy. He did not have objective evidence of bowel or bladder symptoms of his back disability. Based on the foregoing, the Board find that a 10 percent rating is warranted for the right lower extremity, and a 20 percent rating is warranted for the left lower extremity effective from May 24, 2017 (the date of the examination), which is the earliest ascertainable date as to the severity of the disabilities. The Board notes that merely because the Veteran has non-sensory abnormality such as hypoactive reflex, does not mean that his disability must be evaluated as greater than mild. There are not clinical opinions that the Veteran’s radiculopathy manifestations are more than a mild impairment for the right, and more than a moderate impairment for the left. In making the above determinations, the Board has applied the benefit of the doubt rule where warranted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a TDIU prior to December 6, 2000 Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). 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. 38 C.F.R. § 4.16 (b). The Veteran’s employment history included working with a police department from 1970 to 1972, and for a manufacturing company from 1972 to March 1993 (yarn spinning operator/baler operator which required him to stand and walk eight hours a day, and frequently lift and carry items); he reported that he did not lose any time during his employment (see September 1994 VA Form 21-4138). He has a high school degree. Prior to December 6, 2000, the Veteran was in receipt of service connection for posttraumatic stress disorder (PTSD) rated as 30 percent disabling, a back disability rated as 10 percent disabling, scars evaluated as noncompensable and GERD evaluated as noncompensable; his combined rating was 40 percent. The Board has previously held that the Veteran’s appeal of the effective date for his TDIU requires two different considerations: (1) whether TDIU was first shown to be due to the broad set of service-connected disabilities at any time within the year prior to his December 20, 2000 claim for TDIU, and (2) whether TDIU can be granted based solely on the impairment from his service-connected back disability alone at any time from March 8, 1994 to December 6, 2000 pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009 (see Board’s November 2017 remand). Prior to December 6, 2000 the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). In such case, the Board’s analysis is limited to merely granting or denying the referral for TDIU to the Director, Compensation Services to consider the claim on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). The Board will refer the matter to the Director under 4.16(b) only where Board determines that the Veteran was unemployable due to his service-connected back disability at any time since March 8, 1994 or where the Board determines that the Veteran was unemployable due to his service-connected disabilities within the year prior to December 20, 2000. March 8, 1994 to December 6, 2000 (consideration of service-connected back disability alone) The Board finds, based on the evidence summarized below, that referral to the Director, Compensation Services is not warranted because the preponderance of the evidence is against a finding that the Veteran was unemployable due to his service-connected back disability alone at any time since March 8, 1994. During this period, his back disability was rated 10 percent disabling. In February 1993, the Veteran was climbing a ladder at his employment to clear a jam in machinery, when he slipped and his left leg became entangled in the machinery resulting in an open fracture and crush injury of the left tibia and fibula, an exacerbation of a prior back injury (status post fusion), and a left knee injury requiring a partial medial meniscectomy and debridement of cartilage. He was treated with surgery for his fracture, was placed in a cast, and was referred for physical therapy for his leg. In July 1993, he was able to stand for approximately 2 to 3 hours and was discharged from physical therapy with an opinion that he could return to work on a 2 to 3 hour standing basis; however, this was expected to improve over the next 6 to 8 weeks; the record as a whole indicates that the limitation was due to the leg/ankle injury. An August 1993 record reflects he continued to have mild discomfort of the ankle and was concerned about his employability. A November 1993 private record reflects the statement of the private examiner as follows: I have tried to get him to go back to work, but he says who will hire me. I see no reason why he can’t go back to some type of job with some lifting and squatting restrictions. I have encouraged him to try. A January 1994 Southeastern Orthopaedic Clinic record reflects that the Veteran reported back, knee, and ankle problems and that he reported that most of his discomfort is relatively persistent for both the back and knee. An April 1994 Southeastern Orthopaedic Clinic (Dr. Anderson) record reflects that the Veteran reported that his back is aching, that he cannot sit or stand for long periods of time, that his ankle prohibits him from wearing boots and has a constant numbness, that his left knee continues to have pain if he lifts a certain way, and that his hands have pain. It was noted that the Veteran had multiple problems with multiple areas, but with regard to chronic back pain, he “functions pretty well with this and did up until the time that he had this more recent accident.” Upon examination, with regard to the back, he could fully flex his back and touch his fingertips to his ankles. The examiner stated “I think the patient could be employed. Jobs that require prolonged, confined sitting would be problematic for his back.” The examiner further stated that jobs that require prolonged standing would be problematic for his leg, and jobs that require heavy lifting or repetitive use would be problematic for his hands; the Veteran is not in receipt of service-connection for his knee and hands; thus, those limitations cannot be considered in the TDIU analysis. Notably, for his back, the clinical finding with regard to limitation was for prolonged sitting. As noted above, the Veteran’s prior employment for two decades involved prolonged standing and/or walking (eight hours a day) and not prolonged sitting. (While the Veteran contended that he could not do prolonged standing, the clinician related this to leg problems.) Upon examination in July 1994, the Veteran had some diffuse spasms in the lower back but had good forward bending and could almost touch his toes, he also could extend well, tip-toe, and heel walk. The Veteran reported that his back pain gets worse when he sits for long periods of time. Again, the Board notes that his primary work experience did not involve prolonged sitting. August 1994 correspondence from Dr. Shuford (Hanover Medical Specialists) reflects that the Veteran experienced a work-related injury that left him disabled and on workman’s compensation. In a 1995 statement (VA Form 21-4138), the Veteran stated that he has pain and problems with his back. SSA records reflect that the Veteran reported that he had been unable to work since February 1993 due to problems with chronic pain in his left ankle, left knee, and lower back. The Veteran reported that on February 28, 1993, he was working on some machinery when he was dragged into the machinery, which essentially crushed his ankle, and reinjured his left knee and lower back. Subsequently, he had two operations on his left ankle and one operation on his left knee. The Veteran reported that he could walk approximately 100 yards before he started to feel pain in his left knee, left ankle, and back, and had to lie down. He also reported that lifting was difficult for him. He stated that the February 1993 accident exacerbated his prior back complaints. The Veteran’s spouse submitted an affidavit in January 1995 however, it does not discuss the Veteran’s back disability alone. A January 1998 “mdsi Physician Group” record reflects that the Veteran would be unable to stand or walk for two hours or more due to his severely injured ankle for which he is not in receipt of service connection. It was also noted that he would be able to sit continuously with breaks every 30 minutes during a six-hour day. The Veteran reported that he was unable to function due to his multiple medical problems but his main problem is his severe ankle and back pain. Other limitations were noted but they were not specific to the back. Upon examination, the Veteran had lateral flexion to 30 degrees, flexion to 90 degrees, extension to 5 degrees, and “mild back pain in the left lumbar area.” Again, the record does not support a finding that the Veteran’s back disability alone prevents him from substantial gainful employment. An October 1999 Southeastern Orthopaedic Clinic reflects that the Veteran was “working, self-employed as a painter, works when he can.” It was noted that he can fully flex his back and touch his fingertips to the floor, as well as fully squat. November 1999 correspondence from Wilmington Health Associates (Dr. Meisel) reflects that the Veteran reported that his back pain had been getting worse “recently”, and he had some “slight” radicular pain down into the leg. It was noted that he “works doing plastic bead blasting and this pain bothers him significantly in his job.” The record did not indicate how many hours a week the Veteran was working, the amount of income (if any), the degree of impairment, and if the work involved prolonged standing/walking. A December 29, 1999 QTC report (Dr. Maultsby) reflects that the Veteran reported that pulling and pushing causes “some discomfort” in his back. It was further noted that since his retirement, he has “done some odd jobs painting and carpentry type work. He has worked as a coach and martial arts instructor for children. He is able to cut the grass with a riding lawn mower.” Upon examination, he had flexion to 70 degrees with pain at 60 degrees, extension to 20 degrees with pain at 15 degrees, lateral motion to 35 degrees with pain at 30 degrees on the right, lateral motion to 40 degrees with pain at 35 degrees on the left, right rotation to 30 degrees with pain at 25 degrees, and left rotation to 35 degrees with pain at 25 degrees. There was no fatigue, weakness, or lack of endurance during examination and no evidence of decreased range of motion secondary to weakness or fatigue. The decreased range of motion was due to pain. The Veteran, in a December 2000 notice of disagreement, stated that he experiences daily pain with his back, and is “unable to manage a full day’s work”. He reported that he cannot bend and lift without pain. He did not indicate how many hours he could work, only that it was less than a “full day” which the Board assumes arguendo would be eight continuous hours. Dr. E. Tripi, a psychologist and certified rehabilitation counselor, testified at the April 2016 Board hearing that the Veteran stopped working in February 1993 due to a back injury. However, as described in the medical records noted above the Veteran stopped working in 1993 when he crushed his leg in a piece of machinery in an incident that also exacerbated a prior back injury. She also testified that it was a “combination of the psychological as well as significant injury that he sustained” that eliminated his ability to work on a sustained basis. As noted above, in this case, for the period from March 8, 1994 to December 1999, the Board’s jurisdiction is limited to consideration of his service-connected back disability alone. The Board finds, based on the record as a whole for the pertinent time period, that the evidence does not support that the Veteran’s service-connected back disability precluded substantial gainful employment based on his employment and educational experience. To the extent that the Veteran was unable to maintain substantial gainful employment during this period, the most competent evidence (the clinical records) does not support that this was due to the Veteran’s back disability alone. The Veteran’s representative contends that the evidence, including a January 1994 assessment by Dr. Reynolds and an October 1999 assessment by Southern Orthopaedic Clinic, supports a finding that the Veteran’s service-connected back disability prevented him from physical and sedentary employment. The Board disagrees. The January 1994 assessment reflects that the Veteran would have difficulty with lifting and/or carrying any weight greater than 20 pounds, and lifting or carrying frequently any weight greater than 10 pounds (without a notation as to which disability would cause this limitation; the Veteran had complaints of the elbow, wrist, knee, ankle, and back). Regardless, the Veteran has stated that his past experience required him to lift and carry 10 pounds with the heaviest of 30 pounds, but does not note that this was an integral/substantial part of his employment. However, the limitation with regard to walking or standing was in regard to his non-service connected ankle. The October 1999 Southern Orthopaedic Clinic record notes that jobs which require heavy lifting, pushing, pulling and prolonged sitting would be problematic due to his back, but does not make a limitation for squatting or prolonged waking for the back; those limitations were due to the nonservice-connected knee. The July 2018 VA opinion provider addressed the question of the impact of the Veteran’s service-connected low back disability on his functioning. After reviewing the record, the opinion provider noted that “during the period from March 8, 1994 to December 6, 2000, as per documented medical records, veteran was able to perform his activities, with pain, but able to perform his duties at job.” The opinion provider noted the July 1994 medical record which showed “good forward bending.” The opinion provider acknowledged that the Veteran had a flare-up and was out of work for a few weeks due to his back but found that “this was not a permanent situation.” The clinician noted that the frequency of flare-ups over this period was not possible to determine given the lack of details in the record regarding functional impairment during this period. The opinion provider further concluded that any increases or decreases in functioning over this period were also not identified so that any attempt to determine fluctuations in functioning with the documented medical information would be speculative. As the examiner explained the inability to provide further retrospective opinion by identifying precisely what facts cannot be determined and given that there is no indication of other records that might reasonably illuminate the medical analysis, no further development is necessary. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The preponderance of the evidence is against a finding that it is as likely as not that the Veteran’s service-connected back disability alone prevented him from substantial gainful employment with consideration of his education and employment history. Thus, referral for consideration of a TDIU on an extra-schedular basis is not warranted. December 20, 1999 to December 6, 2000 (consideration of all service-connected disabilities) During this period, the schedular TDIU criteria are not met as the Veteran’s combined disability rating was 40 percent. As noted in the Board’s prior remands, a December 20, 2000 statement by the Veteran that he was “unable to manage a full day[’]s work” asserted entitlement to a TDIU in the context of appealing the compensation rating assigned for his back disability. However, as VA has recently awarded TDIU as a matter arising from that statement while also considering a combination of service-connected disabilities (not solely the back disability), the Board shall also recognize (for the sake of consistency) the December 20, 2000 statement as also raising a claim for entitlement to a TDIU on the basis of any combination of service-connected disabilities. The rating period on appeal is from December 20, 1999 which is one year prior to the correspondence provided that there is a factually ascertainable increase in severity of the combination of the service-connected disabilities to meet the criteria for a TDIU. (See 38 C.F.R. § 3.400 (o)(2), the effective date in a claim for an increased rating will be one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one-year time period. See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). In order to determine whether there was the onset of an increase in the period from December 20, 1999 to December 6, 2000, the Board has reviewed the records as to his prior mental and physical conditions, and cited to the dates of some of the treatment records in parentheses below. Prior to the period in question here, the evidence reflects that the Veteran’s acquired psychiatric disability would probably cause difficulty working effectively with others on a consistent continuous basis (January 1997), caused several problems to include with sleep and memory, high anxiety causing ulcers, bland mood with mild to moderate depressive affect, and psychological stress (February 1997), and moderate to moderately severe difficulty in occupational functioning (January 1998). He was seeing his psychologist Dr. Grotsky twice a month (December 1997). His back caused severe pain (February 1997), and he reported he could only stand for two to three hours or sit for 30 minutes without pain (January 1998), he reported that he was unable to function due to his multiple medical problems (January 1998), and he had difficulty lifting things (January 1998). A November 1999 record reflects that his back pain had been getting worse recently (which was prior to December 1999) with slight radicular pain down into the leg. During the period in question, a December 29, 1999 QTC report reflects that the Veteran reported that he can only lift light weights and has difficulty walking more than a mile or sitting for more than one hour, or standing for more than 30 minutes. An April 2000 Johnson Digestive Disease Group reflects that his GERD had become more severe in the last two years. A December 6, 2000 Psychological Update from Human Growth & Training Associates reflects that the Veteran, as noted in a prior report, “continues to be seen in therapy approximately two times a month and retains a flat, dull affect”. He also “continues to have nightmares approximately two to three times per week”. None of the record note that the Veteran’s increase began between December 1999 and December 2000. A September 2001 QTC report, with regards to the Veteran’s sleep difficulties, reflects that he had the same pattern of sleep “for so long that it almost seems like a normal sleep pattern to him now”, and he and his wife had been sleeping in separate bedrooms for fifteen years. The Veteran was noted to have moderate depression and moderate anxiety. A December 7, 2001 treatment summary from Human Growth & Training Associates reflects that the Veteran had been discussing his Vietnam experiences more in the “past two years” and that has made his current functioning more difficult.” He continued to be seen twice a month by Dr. Grotsky. It does not reflect that the Veteran had an increase in symptom severity beginning at any time in the year prior to December 20, 2000. As noted above, Dr. E. Tripi, a psychologist and certified rehabilitation counselor, testified at the April 2016 Board hearing that it was a “combination of the psychological as well as significant injury that [the Veteran] sustained” that eliminated his ability to work on a sustained basis.” She also stated that in her opinion he was unable to work due to his service-connected back disability and his psychological disability (see Board hearing transcript, page 12). Importantly for purposes of whether an earlier effective date is warranted under 38 C.F.R. § 3.400 (o)(2), she testified that in her opinion the Veteran has been unemployable since 1993 (more than six years prior to when he filed his claim for a TDIU). Her testimony does not support a finding of an increase in the one year prior to his 2000 claim. (In a March 2016 Report, she also stated that his combined symptoms rendered him unemployable since 1993; thus, she has not indicated an increase in symptoms in the year prior to December 2000 rendered him unemployable.)   Based on the foregoing, the Board finds that the Veteran’s claim should not be referred to VA’s Director, Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard