Citation Nr: 18147747 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-15 753 DATE: November 6, 2018 ORDER Entitlement to an evaluation greater than 30 percent for the service-connected degenerative disc disease (DDD) of the cervical spine is denied. Entitlement to an evaluation greater than 20 percent prior to September 5, 2014 for the service-connected DDD of the lumbar spine is denied. Entitlement to an evaluation greater than 40 percent beginning September 5, 2014 for the service-connected DDD of the lumbar spine with left hip pain (w/LHP) status post (s/p) decompressive laminectomy of L4-L5 (DL of L4-L5) and lay bone fusion posterior laterally at L4-5 (LBFPL at L4-5) is denied. Entitlement to an initial compensable evaluation prior to July 1, 2013 for the service-connected cervical radiculopathy of the left upper extremity (LUE) associated with DDD of the cervical spine is denied. Entitlement to an initial evaluation greater than 20 percent beginning July 1, 2013 for the service-connected cervical radiculopathy of the LUE associated with DDD of the cervical spine is denied. Entitlement to an initial compensable evaluation prior to July 1, 2013 for the service-connected cervical radiculopathy of the right upper extremity (RUE) associated with DDD of the cervical spine is denied. Entitlement to an initial evaluation greater than 20 percent beginning July 1, 2013 for the service-connected cervical radiculopathy of the RUE associated with DDD of the cervical spine is denied. Entitlement to an initial compensable evaluation prior to September 5, 2014 for lumbar radiculopathy, right lower extremity (RLE) associated with DDD of the lumbar spine w/LHP s/p DL of L4-L5 and LBFPL at L4-5 is denied. Entitlement to an initial evaluation greater than 10 percent beginning September 5, 2014 for the service-connected lumbar radiculopathy, RLE associated with DDD of the lumbar spine w/LHP s/p DL of L4-L5 and LBFPL at L4-5 is denied. Entitlement to an effective date of January 9, 2012 for a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to TDIU prior to January 9, 2012 is remanded. FINDINGS OF FACT 1. The service-connected DDD of the cervical spine is manifested by forward flexion measuring 15 degrees or less with consideration of additional functional loss as the result of pain, pain on motion, and repetitive motion; no findings of ankylosis; and there were no incapacitating episodes of intervertebral disc syndrome (IVDS) of at least four weeks. 2. Prior to September 5, 2014, the service-connected DDD of the lumbar spine pain was manifested by range of motion measuring greater than 30 degrees but not greater than 60 degrees with consideration of additional functional loss as the result of pain, pain on motion, and repetitive motion; no findings of ankylosis; and there were no incapacitating episodes of IVDS of at least four weeks. 3. Beginning September 5, 2014, the service-connected DDD of the lumbar spine is manifested by range of motion measuring 30 degrees or less with consideration of additional functional loss as the result of pain, pain on motion, and repetitive motion; no findings of ankylosis; and there were no incapacitating episodes of IVDS of at least six weeks. 4. Prior to July 1, 2013, cervical radiculopathy of the LUE associated with DDD cervical spine had not been clinically established. 5. Beginning July 1, 2013, the service-connected cervical radiculopathy of the LUE is manifested by no more than mild symptoms of incomplete paralysis of the upper radicular nerve group. 6. Prior to July 1, 2013, cervical radiculopathy of the RUE associated with DDD cervical spine had not been clinically established. 7. Beginning July 1, 2013, the service connected cervical radiculopathy of the RUE is manifested by no more than mild symptoms of incomplete paralysis of the upper radicular nerve group. 8. Prior to September 5, 2014, lumbar radiculopathy of the RLE had not been clinically established. 9. Beginning September 5, 2014, lumbar radiculopathy, RLE is manifested by no more than mild symptoms of incomplete paralysis of the sciatic nerve. 10. Beginning January 9, 2012, the Veteran met the schedular requirements for TDIU, and medical evidence shows he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 30 percent for the service-connected DDD of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5243 (2017). 2. Prior to September 5, 2014, the criteria for an evaluation greater than 20 percent for the service-connected DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5242-5243 (2017). 3. Beginning September 5, 2014, the criteria for an evaluation greater than 40 percent for the service-connected DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5242-5243 (2017). 4. Prior to July 1, 2013, the criteria for an initial compensable evaluation for cervical radiculopathy of the LUE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8510 (2017). 5. Beginning July 1, 2013, the criteria for an initial evaluation greater than 20 percent for the service-connected cervical radiculopathy of the LUE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8510 (2017). 6. Prior to July 1, 2013, the criteria for an initial compensable evaluation for cervical radiculopathy of the RUE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8510 (2017). 7. Beginning July 1, 2013, the criteria for an initial evaluation greater than 20 percent for the service-connected cervical radiculopathy of the RUE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8510 (2017). 8. Prior to September 5, 2014 the criteria for an initial compensable evaluation for lumbar radiculopathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8520 (2017). 9. Beginning September 5, 2014, an initial evaluation greater than 10 percent for the service-connected lumbar radiculopathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8520 (2017). 10. Entitlement to an effective date of January 9, 2012 for TDIU is granted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to September 1987. During the course of this appeal, temporary total ratings (TTRs) were assigned under 38 U.S.C. § 4.30 (2017) following surgery requiring convalescence for the service connected cervical and lumbar spine disabilities from March 18-June30, 2013 and from July 8-August 31, 2013, respectively. Following, 30 and 20 percent evaluations were confirmed and continued for the cervical and lumbar spine disabilities, respectively; but a 40 percent evaluation was subsequently awarded for the lumbar spine disability effective September 5, 2014. In addition, additional compensable evaluations were afforded for cervical radiculopathy of the UEs, evaluated as 20 percent disabling, each, effective July 1, 2013; and for lumbar radiculopathy of the RLE, evaluated as 10 percent disabling effective September 5, 2014. However, as the assigned evaluations are not the maximum evaluations afforded under the diagnostic codes, and as they have not been made effective throughout the entire period of time under appeal, the issues of higher evaluations, as characterized on the front page of this decision, remain before the Board. See AB. v. Brown, 6 Vet. App. 35, 38 (1993). In a January 2016 formal notice of disagreement, the Veteran stated he disagreed with the percentage of disability and the effective date of service connection assigned the now service-connected major depressive disorder (MDD). The agency of original jurisdiction (AOJ) issued a statement of the case as to these issues (in addition to the other issues on appeal), in October 2016. However, the Veteran did not submit a substantive appeal as to the issues concerning the service-connected MDD. The issues concerning the service-connected MDD are therefore not on appeal before the Board. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code 5242 contemplates degenerative arthritis of the spine. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the lumbar spine not greater than 120 degrees or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is not afforded for the lumbar spine. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the lumbar spine 30 degrees or less; or, favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate diagnostic code. Note 2 following the General Rating Formal provides that normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. Normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242. Under the Formula for Rating IVDS based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 following the Formula for Rating IVDS specifies that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 8510 contemplates paralysis of the upper radicular group (fifth and sixth cervicals). A 20 percent evaluation is warranted for mild incomplete paralysis, bilaterally. A 40 percent evaluation is warranted for moderate incomplete paralysis on the major side; 30 percent, on the minor side. A 50 percent evaluation is warranted for severe incomplete paralysis on the major side; 40 percent, on the minor side. A 70 percent evaluation is warranted for complete paralysis on the major side; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected; 60 percent, on the minor side. 38 U.S.C. § 4.124a, Diagnostic Code 8510. Diagnostic Code 8520 contemplates paralysis of the sciatic nerve. A 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent evaluation is warranted for moderately severe incomplete paralysis. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent evaluation is warranted 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. 38 U.S.C. § 4.124a, Diagnostic Code 8520. 1. Entitlement to higher evaluations for the service-connected DDD of the lumbar spine prior to and beginning September 5, 2014 Service connection for DDD of the lumbar spine was granted in a June 2007 rating decision, and a 10 percent evaluation was assigned, effective September 2006. In a March 2009 rating decision, a 20 percent evaluation was assigned and the disability was described as DDD, lumbar spine w/LHP, effective in June 2008. In a February 2010 rating decision, a TTR was assigned under 38 C.F.R. § 4.30 from October 30, 2009 to December 31, 2009, after which the 20 percent evaluation was resumed. The lumbar spine disability was recharacterized as DDD, lumbar spine w/LHP s/p DL of L4-L5 and LBFPL at L4-5. In August 2013, the Veteran filed claims for increase. In January 2015 rating decision, the AOJ granted a TTR under 38 C.F.R. § 4.30 from July 8, 2013 to August 31, 2013, after which the 20 percent evaluation was resumed. A 40 percent evaluation was assigned effective September 5, 2014. These evaluations and effective dates have been confirmed and continued to the present. The Veteran has appealed the evaluations assigned for each period. a) Entitlement to an evaluation higher than 20 percent prior to September 5, 2014 Prior to September 5, 2014, the criteria for an evaluation greater than 20 percent are not met. VA examination reports and treatment records, and private medical records evidence do not show limitation of forward flexion of the thoracolumbar spine to 30 degrees or less at any point prior to September 5, 2014. Moreover, the Veteran and his representative have not argued, and the medical evidence does not show, that the Veteran’s lumbar spine disability is manifested by favorable or unfavorable ankylosis of the thoracolumbar spine, or that the Veteran has experienced incapacitating episodes of IVDS of 4 weeks or greater at any time. See September 2013, 2014, and 2015 VA Examinations for Spine; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs). Accordingly, the preponderance of the evidence is against the claim for an evaluation higher than 20 percent for the service-connected DDD of the lumbar spine prior to September 5, 2014; and the evaluation of an evaluation greater than 20 percent is not warranted. b) Entitlement to an evaluation higher than 40 percent beginning September 5, 2014 Beginning September 5, 2014, the criteria for an evaluation greater than 40 percent are not met. VA examination reports and treatment records, and private medical records evidence do not show, and the Veteran and his representative have not argued, that the Veteran’s lumbar spine disability is manifested by favorable or unfavorable ankylosis of the thoracolumbar spine, or that the Veteran has experienced incapacitating episodes of IVDS of 6 weeks or greater at any time during this time period. See September 2013, 2014, and 2015 VA Examinations for Spine; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs). Accordingly, the preponderance of the evidence is against the claim for an evaluation higher than 40 percent for the service-connected DDD of the lumbar spine beginning September 5, 2014; and the evaluation of an evaluation greater than 40 percent is not warranted. 2. Entitlement to higher initial evaluations for lumbar radiculopathy of the RLE prior to and beginning September 5, 2014 Also in response to the Veteran’s August 2013 claim for increase, the AOJ granted a 10 percent evaluation for radiculopathy of the RLE, effective September 5, 2014. This evaluation and effective date have been confirmed and continued to the present. The Veteran appeals the evaluation and effective date assigned. a) Entitlement to an initial compensable evaluation prior to September 5, 2014 Prior to September 5, 2014, the criteria for a compensable evaluation are not met. VA examination reports and treatment records, and private medical records evidence show no findings of RLE radiculopathy. See September 2013VA Examination for Spine; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs). Accordingly, the preponderance of the evidence is against the claim for a compensable evaluation lumbar radiculopathy of the RLE prior to September 5, 2014; and a compensable evaluation prior to September 5, 2014, is not warranted. b) Entitlement to an evaluation greater than 10 percent beginning September 5, 2014 Beginning September 5, 2014, the criteria for an evaluation greater than 10 percent are not met. VA examination reports and treatment records, and private medical records evidence show findings of radiculopathy involving the L4, L5, S1, S2 and S3 nerve roots of the sciatic nerve on the right, producing mild and moderate intermittent pain. There were no other identified symptoms of RLE radiculopathy; and there were no findings of radiculopathy on the left side. VA examiners in 2014 and 2015 described the overall severity of sciatic nerve impairment as mild. See September 2013, 2014, and 2015 VA Examinations for Spine; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs). Accordingly, the preponderance of the evidence is against the claim for an initial evaluation higher than 10 percent for lumbar radiculopathy of the RLE beginning September 5, 2014; and the evaluation of an evaluation greater than 10 percent is not warranted. VA examinations, VA treatment records, and private treatment records show no other neurological manifestations that may be separately compensably evaluated as required under Note 1 following the General Rating Formula for the Spine. See 38 C.F.R. § 4.71a. 3. Entitlement to an evaluation greater than 30 percent for DDD of the cervical spine Service connection for DDD of the cervical spine was granted in a June 2007 rating decision, and a 10 percent evaluation was assigned, effective in September 2006. In a March 2009 rating decision, a 20 percent evaluation was assigned, effective in June 2008. A 30 percent evaluation was assigned in a February 2010 rating decision, effective in November 2009. In August 2013, the Veteran filed claims for increase. In an October 2013 rating decision, a TTR was assigned for DDD of the cervical spine under 38 C.F.R. § 4.30 effective March 18, 2013. However, the 30 percent evaluation was resumed from July 1, 2013, and has been confirmed and continued to the present. The Veteran has appealed the denial of an evaluation greater than 30 percent for his cervical spine disability. The criteria for an evaluation greater than 30 percent are not met. VA examination reports and treatment records, and private medical records evidence does not show, and the Veteran and his representative have not argued, that the Veteran’s cervical spine disability is manifested by favorable or unfavorable ankylosis of the cervical spine, or that the Veteran has experienced incapacitating episodes of IVDS of 6 weeks or greater at any time during this time period. See September 2014 and 2015 VA Examinations for Spine; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs). Accordingly, the preponderance of the evidence is against the claim for an evaluation higher than 30 percent for the service-connected DDD of the cervical spine, and an evaluation greater than 30 percent is not warranted. 4. Entitlement to higher initial evaluations for cervical radiculopathy of the L&RUEs prior to beginning July 1, 2013 Also in response to the Veteran’s August 2013 file for increase, the AOJ granted 20 percent evaluations for radiculopathy of the L&RUEs, effective July 1, 2013. These evaluations and effective dates have been confirmed and continued to the present. The Veteran appeals the evaluation and effective dates assigned. a) Entitlement to an initial compensable evaluation for cervical radiculopathy of the L&RUEs prior to July 1, 2013 Prior to July 1, 2013, the criteria for a compensable evaluation are not met. VA treatment records and private medical records evidence show no findings of LUE or RUE radiculopathy prior to July 1, 2013. See PMR (rec’d 4/11/2013), P. 13 of 15; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs) Accordingly, the preponderance of the evidence is against the claim for a compensable evaluation cervical radiculopathy, L&RUE, associated with service-connected DDD, cervical spine prior to July 1, 2013; and compensable evaluations prior to July 1, 2013 are not warranted. b) Entitlement to an evaluation greater than 10 percent for cervical radiculopathy of the L&RUEs beginning July 1, 2013 Beginning July 1, 2013, the criteria for an evaluation greater than 20 percent are not met. VA examination reports and treatment records, and private medical records evidence show findings of radiculopathy involving the C5, C6 and C7 nerve roots of the upper and middle radicular groups bilaterally, producing paresthesias, dysesthesias, and numbness of the L&RUEs. There were no other identified symptoms of L&RUE radiculopathy. VA examiners in 2014 and 2015 described the overall severity as mild. See September 2014, and 2015 VA Examinations for Spine; generally, CAPRI Treatment Records; and, generally, Private Medical Records (PMRs). Accordingly, the preponderance of the evidence is against the claim for an initial evaluation higher than 20 percent for cervical radiculopathy of the L&RUEs beginning July 1, 2013. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 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). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Entitlement to an effective date earlier than September 1, 2013 for TDIU Prior to September 1, 2013 and effective January 9, 2012, the Veteran had a combined evaluation for his service-connected disabilities. Specifically, he was service connected for MDD evaluated as 50 percent disabling, effective January 9, 2012. At this time, he was also service-connected for DDD, lumbar spine, w/LHP s/p DL of L4-L5 and LBFPL at l4-5, evaluated as 20 percent disabling; DDD, cervical spine, evaluated as 20 percent disabling; and a right knee condition associated with DDD of the lumbar spine, evaluated as 10 percent disabling from January 9, 2012. This meets the schedular criteria for TDIU effective January 9, 2012. The evidence of record shows the Veteran was last employed in 2008. According the Veteran all benefit of the doubt, the Board finds that TDIU is warranted based on the Veteran’s service-connected MDD, DDD of lumbar and cervical spine, and right knee condition effective January 9, 2012. Prior to January 9, 2012, the Veteran’s combined total evaluation was 40 percent, based on service connection for DDD of the cervical spine, evaluated as 40 percent disabling, effective November 12, 2009, and DDD of the lumbar spine w/LHP s/p DL of L4-L5 and LBFPL at L4-5, evaluated as 20 percent disabling effective January 1, 2010. This does not meet the schedular criteria for TDIU. However, given that the evidence of record reflects the Veteran was unemployed from 2008, the issue of entitlement to TDIU prior to January 9, 2012 is the subject of a remand immediately following this decision. Accordingly, the evidence establishes an effective date of January 9, 2012 for the grant of TDIU on a schedular basis. REASONS FOR REMAND Entitlement to TDIU prior to January 9, 2012, including on an extraschedular basis is remanded. As noted above, TDIU 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 the service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). Accordingly, by this decision, the Board has determined that an earlier effective date for TDIU on a schedular basis is warranted effective January 9, 2012. Prior to January 9, 2012, the Veteran did not meet the schedular requirements to meet TDIU. Specifically, his combined total evaluation prior to January 9, 2012 was 40 percent, based on service connection for DDD of the cervical spine, evaluated as 40 percent disabling, effective November 12, 2009, and DDD of the lumbar spine w/LHP s/p DL of L4-L5 and LBFPL at L4-5, evaluated as 20 percent disabling effective January 1, 2010. Notwithstanding, and regardless of whether the percentage requirements of 38 C.F.R. § 4.16 (a) are met, entitlement to TDIU on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The documentation concerning the Veteran’s employment is in dispute prior to January 9, 2012. The Veteran reported in 2010 that he last worked in 2008. See May 2010 VA Form 21-8940. But evidence of record shows he may have been only marginally employed prior to 2008. Responses from former employers show that the Veteran last worked in 2006, and that his employment from 2002 to 2006 was seasonal and part-time. See July 2010 VA Forms 21-4192 from B.M.F. and I.R.L. Finally, SSA records reflect the Veteran was found disabled in April 2005 with an onset in July 2004 as the result of primary organic mental disorders after a stroke, and secondary affective disorders. See April 2005 SSA Determination and Transmittal; and SSA “Case Analysis” filed in Medical Treatment Records – Furnished by SSA (rec’d 10/12/2010) p. 5 of 108. During this time, however, the Veteran was also service-connected for DDD of the cervical spine and lumbar spine, effective as early as in September 2006. Accordingly, the Board finds there is an indication in the record that the Veteran’s service-connected disabilities interfered with his ability to maintain or obtain substantially gainful employment prior to January 9, 2012. The Board thus remands the claim for entitlement to TDIU prior to January 9, 2012 for referral to the Director of the Compensation Service in accordance with 38 C.F.R. § 4.16 (b) for consideration of whether TDIU is warranted on an extraschedular basis for the period prior to January 9, 2012.   The matter is REMANDED for the following action: Take all action necessary to initially adjudicate the Veteran’s claim for TDIU prior to January 9, 2012, including on an extraschedular basis, to include referral to the Director of the Compensation Service for extraschedular consideration. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel