Citation Nr: 20007265 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-28 526 DATE: January 28, 2020 ORDER Entitlement to an initial rating of 20 percent for service-connected degenerative arthritis of the lumbar spine prior to January 31, 2013, is granted. Entitlement to an evaluation in excess of 40 percent for service-connected degenerative arthritis of the lumbar spine (lumbar spine) since January 31, 2013, is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected degenerative arthritis of the lumbar spine prior to January 31, 2013, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to January 31, 2013, the Veteran’s lumbar spine disability was manifested by pain with flexion limited to, at most 60 degrees, without evidence of incapacitating episodes. 2. From January 31, 2013, the Veteran’s lumbar spine disability is manifested by pain with flexion limited to 15 degrees, without evidence of incapacitating episodes. CONCLUSIONS OF LAW 1. For the period prior to January 31, 2013, the criteria have been met for a rating of 20 percent, but no higher, for the lumbar spine disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5003, 5235-5243 (2018). 2. From January 31, 2013, the criteria are not met for a rating in excess of 40 percent for the lumbar spine disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5003, 5235-5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to September 1991 and October 2008 to November 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, the Veteran filed his original claim for service connection for lumbar spine in October 2011. The RO granted service connection in an April 2012 rating decision and assigned a noncompensable rating. The Veteran filed a claim for reconsideration and notice of disagreement in January 2013 as one document. The RO treated this submission as a claim for reconsideration and increased the Veteran’s rating in an October 2013 rating decision to 20 percent effective the date of the claim for reconsideration, January 31, 2013. Thereafter, the Veteran filed an additional notice of disagreement in February 2014. While the claim was pending on appeal, in an April 2016 rating decision, the RO increased the rating to 40 percent, effective January 31, 2013. Here, the RO interpreted the Veteran’s January 31, 2013 submission as a claim for increased compensation. As the increase does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Furthermore, the Board finds the Veteran’s January 2013 submission was incorrectly considered as a claim for reconsideration. The Board finds the submission to be a notice of disagreement to the April 2012 rating decision and, therefore, the Board will treat it as such and will evaluate whether the Veteran is eligible for a higher initial rating. Increased Ratings Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Id. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Factual Background The Veteran sought constant treatment for his chronic lumbar spine disability as evidenced by the record. In a December 2011 visit, the physician found the Veteran had decreased range of motion as to flexion and extension. See December 2011 Physical Medicine Rehab Consult. Additionally, the Veteran’s range of motion was determined to be 60 degrees on flexion during physical therapy. See February 2012 Physical Medicine Rehab Note. During another physical therapy visit, the Veteran’s range of motion was determined to be 65 degrees on flexion. See March 2012 Physical Medicine Rehab Discharge Note. In April 2012, the Veteran underwent a VA examination conducted in connection with his claim for service connection, for a lumbar spine disability, the examiner acknowledged the Veteran’s diagnosis of degenerative joint disease of the lumbar spine. See April 2012, VA DBQ Back (Thoracolumbar Spine) Conditions Exam. The Veteran reported constant back pain, prone to falling, and a muscle spasm. The Veteran’s range of motion revealed to be normal and he was able to perform repetitive use testing resulting in the same range of motion findings. While the examiner found the Veteran’s range of motion to be normal, the examiner did find the Veteran suffered from function loss of the lumbar spine after repetitive use as there was interference with sitting, standing and/or weight-bearing. Additionally, the Veteran was not found to have ankylosis or muscle atrophy. Muscle strength and sensory were normal on examination and no neurological manifestations were noted to be present. Also, there was no evidence of radiculopathy during the examination. The examiner did not find the Veteran suffered from IVDS. The Veteran was granted service connection for his lumbar spine disability in April 2012. The Veteran received a noncompensable rating. The Veteran reported worsening back pain overtime and filed a notice of disagreement for his lumbar spine disability. See January 2013 Primary Care Note. In an October 2013 rating decision, the RO increased the Veteran’s rating to 20 percent effective January 31, 2013, the date of the Veteran’s notice of disagreement. In June 2013, the Veteran underwent a VA examination for his lumbar spine disability during which the Veteran reported chronic low back pain. See June 2013 VA Back Conditions DBQ. Range of motion testing revealed forward flexion to 45 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Pain was not noted in any ranges of motion during the examination. The examiner noted the Veteran would only continue a motion where he was not incurring pain and would stop motion where pain was experienced. The Veteran was unable to perform repetitive use testing. The examiner also noted the Veteran experienced localized tenderness. Additionally, there was no evidence of muscle spasm and his muscle strength was found to be normal. There was also no evidence of muscle atrophy and ankylosis found. As for neurological manifestations, the examiner noted there was no radiculopathy or other neurological manifestations. Finally, the examiner found the Veteran did not suffer from IVDS. Then, in February 2014, the Veteran filed an additional notice of disagreement for an increased rating. The RO in an April 2016 rating decision issued an increased rating for his lumbar spine disability of 40 percent effective January 31, 2013. In April 2016, the Veteran underwent his most recent VA examination where the Veteran reported his lumbar spine disability had worsened since the June 2013 examination. See April 2016 VA Back Conditions DBQ. The Veteran reported experiencing persistent low back pain which worsens with walking or standing for more than five minutes and sitting for more than one hour. The Veteran reported flare-ups which results in functional loss making him unable to perform daily activities such as going to the kitchen. The range of motion testing revealed forward flexion to 15 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Pain was noted in all ranges of motion during the examination which causes functional loss. The Veteran was able to perform repetitive use testing which did not result in additional limitation of motion. There was also evidence of localized tenderness resulting in abnormal gait or abnormal spinal contour and muscle spasm not resulting in abnormal gait or abnormal spinal contour. The Veteran’s muscle strength was found to be normal and there was no muscle atrophy or ankylosis. As for neurological manifestations, the examiner noted there was no radiculopathy or other neurological manifestations. Finally, the examiner indicated that the Veteran did not have IVDS. It was noted the Veteran used assisted devices consisting of a cane on a constant basis. In a March 2019 physical therapy visit, the Veteran was found to have decreased core strength and flexibility which was likely contributing to his mechanical low back pain. Also, the physician determined the Veteran suffered from decreased strength, decreased flexibility, decrease range of motion, and mechanical dysfunction. It was not found that the Veteran suffered from ankylosis. See March 2019 Physical Therapy Outpatient Consult. Legal Analysis and Conclusion The Veteran’s lumbar spine disability is currently rated at 10 percent prior to January 31, 2013, and 40 percent thereafter, under Diagnostic Code 5242. The Veteran has contended that he is entitled to a higher rating for the entire period on appeal, which begins on October 21, 2011. Diagnostic Code 5242 directs VA to rate the Veteran under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Notably, the evidence of record overwhelmingly demonstrates that the Veteran does not have IVDS, given such, only the General Rating Formula for Diseases and Injuries of the Spine will be considered. See April 2012 VA DBQ Back (Thoracolumbar Spine) Conditions Exam, June 2013 VA Back Conditions DBQ, April 2016 VA Back Conditions DBQ. The General Rating Formula provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 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. When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a. 1. Period prior to January 31, 2013 (20 percent rating) Following a review of the lay and medical evidence of record, the Board concludes that the Veteran’s lumbar spine disability most nearly approximates the criteria for a 20 percent rating. See 38 C.F.R. § 4.7. Specifically, the Veteran’s VA medical treatment records establish that his range of motion was determined to be 60 degrees on forward flexion. See February 2012 Physical Medicine Rehab Note. Notably, the Veteran also presented to a VA examination in April 2012, two months after he was evaluated for rehabilitation; however, this examination is inadequate for rating the Veteran’s disability as it does not address the Veteran’s pain and how it limits the Veteran’s range of motion due to pain. Given such, the Board finds the Veteran’s VA medical treatment records, at a minimum, reflect that he is entitled to a 20 percent rating, where his range of motion is limited to 60 degrees on forward flexion. Based on the inadequacy of the April 2012 VA examination report, as to be explained further below in the Remand section of this decision, the Board grants the Veteran a higher initial rating to this extent only. Accordingly, the Board grants the Veteran a rating of 20 percent prior to January 31, 2013. 2. Period since January 31, 2013 (40 percent rating) For the period since January 31, 2013, the Veteran is currently rated at 40 percent. The objective evidence of record for this period includes VA treatment records, a June 2013 VA examination, and an April 2016 VA examination. As mentioned above, the next higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine and a higher rating for 100 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. During the June 2013 VA examination, there was no evidence ankylosis found. During the April 2016 VA examination, the Veteran reported flare-ups which results in functional loss making him unable to perform daily activities. See April 2016 VA Back Conditions DBQ. However, the examiner did not find that the Veteran suffered from ankylosis. See id. For the period on appeal since January 31, 2013, there are numerous VA treatment records. Unfortunately, the VA treatment records do not contain any evidence that the Veteran suffers from ankylosis warranting the higher 50, 60, or 100 percent ratings. Therefore, even considering any additional functional impact of the Veteran’s lumbar spine disability as noted above and his reports of pain, the fact remains that the Veteran retains motion in his lumbar spine, although limited, which precludes a finding of ankylosis. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss did not equate to the criteria required for a 50 or 100 percent rating. Further, to the extent the June 2013 and April 2016 VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston, supra, indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis of other symptoms unrelated to limitation of motion, 38 C.F.R. § § 4.40 and 4.45 are not for application. There is no other medical evidence, as discussed in detail above, which would support the Veteran’s contentions that his lumbar spine disability has increased in severity beyond the currently assigned 40 percent rating. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his back disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible. The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally requires medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”). As the preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND 1. Lumbar Spine Disability Prior to January 31, 2013 The Veteran contends that he is entitled to a higher initial rating for his service-connected lumbar spine disability. On review, the Board finds that a remand is warranted, as the April 2012 VA examination is inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). The Board has granted an initial rating of 20 percent in this decision but also finds a remand is necessary to determine whether a higher rating is warranted for the period on appeal prior to January 31, 2013. The United States Court of Appeals for Veterans Claims (Court) found that, pursuant to 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing situations, in order for an examination to be considered adequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). Although range of motion testing results were provided during the April 2012 VA medical examination, pain on range of motion testing was not conducted. See 38 C.F.R. § 4.59. They also do not specify whether the results are weight-bearing or nonweight-bearing. No substantive explanation is provided as to why such testing was not performed. Because the VA medical examination does not contain these findings, according to the Court, they are inadequate for compensation purposes. Under these circumstances, a remand for a retrospective opinion is necessary. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also Burton v. Shinseki, 25 Vet. App. 1 (2011); 38 C.F.R. § 4.59. In April 2012, the Veteran underwent a VA examination where the examiner noted an initial range of motion on forward flexion ends at 90 degrees or greater, extension ends at 30 degrees or greater, left and right lateral flexion each ends at 30 degrees or greater, left and right lateral rotation each ends at 30 degrees or greater. See April 2012 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). However, although the examiner notes that Veteran’s range of motion, he failed to note when the Veteran experienced pain on motion during the Veteran’s range of motion testing. Furthermore, the examiner determined that the Veteran suffered function loss but failed to address and explain what loss or impairment the Veteran experienced. See April 2012 VA Back (Thoracolumbar Spine) Conditions DBQ. Since the April 2012 examination is unclear as to whether pain was taken into consideration in determining the Veteran’s range of motion (i.e. functional loss), the Board finds this examination inadequate for rating purposes. Furthermore, the examiner failed to explain the Veteran’s functional loss suffered. Therefore, the examination does not allow the Board to make a fully informed decision. Accordingly, remand is required for a retrospective opinion. 2. TDIU As noted above, the Veteran has raised the issue of entitlement to a TDIU. Although TDIU was denied in a March 2017 rating decision, and the Veteran did not perfect an appeal, the Board notes that entitlement to TDIU is not a separate claim but rather is part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion regarding unemployability, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show that the veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60-percent disability, or one 40-percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of “performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is currently in receipt of service connection for lumbar spine disability with a rating of 20 percent prior to January 31, 2013 and 40 percent thereafter. At most, the Veteran has a combined rating of only 40 percent. Consequently, he is not eligible for TDIU on a schedular basis, and, therefore, the only question for the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16 (b) (“It is the established policy of the Department of Veterans Affairs 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.”). The Veteran’s representative suggested that the evidence clearly establishes that the Veteran is unemployable due to his service-connected disability and the case should be considered for extraschedular TDIU. See July 2019 Veteran’s Memorandum in Support of Claim. At the outset, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service to consider entitlement on an extraschedular basis. Id.; 38 C.F.R. § 4.16 (b). In making the aforementioned determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board agrees that referral for consideration of an extraschedular TDIU is warranted. The Veteran has completed high school and obtained a higher bachelor’s degree from Rowan University. See July 2008 Record of Military Processing. During service, the Veteran’s primary specialty was equipment records and parts specialist. See September 1991 Certificate of Release, DD-214. The Veteran claims that he is unemployable as a result of his lumbar spine disability. The Veteran’s April 2016 VA examination, Social Security Administration records, and July 2019 memorandum in support of his claim show the Veteran has not worked as a result of his lumbar spine disability and that his prognosis for being able to return to work would be difficult. In the April 2016 VA examination, the examiner determined that the Veteran’s lumbar spine disability impacted his ability to work. Specifically, the examiner found the Veteran would have “difficulty obtaining and maintaining work in any occupation due to difficulty with standing, walking and sitting.” See April 2016 VA Back Conditions DBQ. Furthermore, the Veteran stated that he has not worked since leaving active duty in January 2010. See July 2019 Veteran’s Memorandum in Support of Claim. The evidence of record does not provide any evidence to the contrary but supports a finding that the Veteran has not engaged in substantial gainful employment since November 2009. See February 2017 Social Security Administration Notice of Decision. In light of the above and considering the Veteran’s employment history and evidence of record, the Board finds that there is sufficient evidence for referral under 38 C.F.R. § 4.16(b). Although additional delay in adjudicating this matter is regrettable, the Board finds that a referral for consideration of entitlement to a TDIU on an extraschedular basis is needed. See 38 C.F.R. § 4.16 (b). As noted above, there is substantial evidence that the Veteran’s service-connected disability, particularly his lumbar spine disability, renders him unemployable, notwithstanding his 40 percent disability rating. The Board cannot award an extraschedular TDIU in the first instance. The matters are REMANDED for the following action: 1. Obtain an addendum retrospective medical opinion from the examiner who conducted the April 2012 VA examination, if available, or another qualified medical professional. The examiner must review the entire claims file, to include this REMAND. The examiner is asked to provide responses to the following: (a.) A retrospective opinion for the period from 2011 to 2013 addressing: (i) prior range of motion of the low back from, (ii) painful motion (and at what point it started and finished), and (iii) explanation as to the Veteran’s functional loss the Veteran experienced. The examiner must provide a thorough rationale. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by: (i) a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or (ii) a deficiency in the record or the examiner, i.e., additional facts are required, or (iii) the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Refer the application for TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16 (b). A full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. (Continued on the next page)   3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.