Citation Nr: 21002036 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-23 413 DATE: January 12, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent prior to June 30, 2010, for service-connected lumbar spine degenerative joint disease (DJD) also diagnosed as intervertebral disc syndrome (IVDS) is denied. Entitlement to an evaluation in excess of 40 percent from June 30, 2010, to January 8, 2013, for service-connected lumbar spine DJD also diagnosed as IVDS is denied. An increased evaluation of 40 percent, but no higher, from January 9, 2013, to March 20, 2014, for service-connected lumbar spine DJD also diagnosed as IVDS is granted. REMANDED Entitlement to an evaluation in excess of 40 percent from March 21, 2014, to present for service-connected lumbar spine DJD also diagnosed as IVDS is remanded. Entitlement to an initial evaluation in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial evaluation in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than January 27, 2014 for the grant of a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 30, 2010, the Veteran’s service-connected lumbar spine DJD also diagnosed as IVDS was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; but not by favorable ankylosis of the entire thoracolumbar spine; or forward flexion of the thoracolumbar spine 30 degrees or less, or incapacitating episodes of IVDS. 2. From June 30, 2010 to January 8, 2013, the evidence shows that the Veteran’s symptoms of lumbar spine DJD also diagnosed as IVDS most closely approximate forward flexion of the thoracolumbar spine to 30 degrees or less, but symptoms did not more nearly approximate ankylosis or incapacitating episodes of at least 6 weeks during the past 12 months. 3. From January 9, 2013 to March 20, 2014, the evidence shows that the Veteran’s symptoms of lumbar spine DJD also diagnosed as IVDS most closely approximate forward flexion of the thoracolumbar spine to 30 degrees or less, but symptoms did not more nearly approximate ankylosis or incapacitating episodes of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. Prior to June 30, 2010, the criteria for an initial rating in excess of 20 percent for lumbar spine DJD also diagnosed as IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243-5242 (2019). 2. From June 30, 2010 to January 8, 2013, the criteria for a rating in excess of 40 percent for lumbar spine DJD also diagnosed as IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code Diagnostic Code 5243-5242 (2019). 3. From January 9, 2013 to March 20, 2014, the criteria for a rating in excess of 40 percent, but no higher, for lumbar spine DJD also diagnosed as IVDS have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code Diagnostic Code 5243-5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1962 to March 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and February 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2017 and June 2018 when it was remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155. Ratings of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which rating to apply, the higher rating is assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran is seeking an initial rating in excess of 20 percent prior to June 30, 2010, in excess of 40 percent from June 30, 2010 to January 8, 2013, and in excess of 20 percent from January 9, 2013 to March 20, 2014 for his service-connected lumbar spine DJD also diagnosed as IVDS. The Veteran’s lumbar spine DJD also diagnosed as IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes that the Veteran is already service-connected for right and left lower extremity radiculopathy associated with service-connected lumbar spine DJD, and these issues will be discussed in the remand section below. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). VA treatment records from December 2004 note the Veteran’s complaints of back pain which was “bad as usual.” The Veteran underwent a VA examination in May 2005. The Veteran reported back pain at night which would awaken him 3 times a night. He described a pain radiating into his left hip and leg briefly 2-3 times a month. He would have to shift positions while trying to sleep. If traveling for long periods in car he would have to sit on a hard surface. There was no history of bowel or bladder abnormalities, other than some urinary frequency. Gait was reciprocal without limp but with a slight shuffle. There was tenderness to direct palpation of the L4-L5-S1 level in the midline. There was also marked tenderness of the left paraspinal muscle, without spasm, and tenderness over the left sciatic notch but without radiation of pain into the left lower extremity. Flexion was 0-70 degrees and extension 0-20 degrees painful. Left lateral bending was 0-20 degrees painful, right lateral bending 0-30 degrees, thoracolumbar rotation 0-45 degrees left and right with some increase in back pain on left full rotation. SLR test was positive. Repetitive testing showed flexion to 0-70 degrees and 0-60 degrees at 10 repetitions. The examiner stated that there was an estimated additional 10 degrees of functional impairment in all planes of lumbar spine range of motion on the basis of repetitive use due to pain with use and limited endurance. There are no episodes of low back pain forcing prolonged bed rest. In a May 2005 letter, the Veteran’s chiropractor stated that the Veteran was complaining of increased back pain and destabilization. In a November 2005 letter, it was indicated that the Veteran’s activities of daily living have been inhibited by his condition. The Veteran was awakened 4-5 times a night due to pain and requested a mobile assistance device to inability to walk any distance. In February 2006 VA treatment records, the Veteran continued to complain of exacerbating back pain recently aggravated by helping his wife. The Veteran underwent a VA examination in June 2010. The Veteran stated that he had constant low back pain, local pain, weakness, stiffness, fatigability, but no radiation of pain into either lower extremity. The Veteran stated he last worked in September 2009 due to caring for his wife. The Veteran also stated he could stand for one minute and used a cane. He experienced daily flare-ups which last about ten minutes and requiring rest. He also got up every day and had no incapacitating episodes required prolonged bed rest. There was tenderness bilaterally at the posterior superior iliac spine to palpation, but no sacroiliac joint or sciatic notch tenderness was noted. Flexion was 0-30 degrees and extension 0-10 degrees with pain at endpoint. Side bending was 0-15 degrees right, and 0-25 degrees left, with pain at endpoint. Rotation right and left was 0-15 degrees each with slight pain at endpoint. He could heel to toe walk but was somewhat unstable. Straight leg raising was 50 degrees bilaterally. There was no significant spasm or guarding contributing to any altered spinal contour or gait disturbance. His antalgic gait was attributable to his left knee. There was no change in active or passive range of motion during repeat testing times three and no additional losses of range of motion, weakness, impaired endurance, incoordination, or instability. Private treatment records from June 2011 from Dr. T.H. indicate that the Veteran was suffering from back pain. Inspection revealed no abnormalities but was positive for tenderness. There was normal flexion, negative straight leg raising and elevated leg test. In an August 2011 letter, the Veteran’s chiropractor stated that the Veteran’s condition would be expected to predispose him to repetitive exacerbations of low back pain and would get worse over time. October 2011 private treatment records from Dr. T.H. indicate low back pain which stung when urinating over the past few days. There was no urgency, hesitancy, or nocturia. During an April 2012 hearing, the Veteran stated that his back pain began to affect his ability to give lectures, and he would have to sit down. In November 2012 private treatment records, the Veteran was noted to have peristent back pain which had gotten worse in the past six months. December 2012 VA treatment records note the Veteran to have severe back pain. He was referred to physical therapy and for possible injections. The Veteran underwent another VA examination in January 2013. He reported flare-ups as difficulty with prolonged walking and standing, pain interfering with sleep, an inability to bend over enough when washing dishes due to pain. Flexion was to 70 degrees with painful motion, extension to 20 degrees with painful motion at 15 degrees, right and left lateral flexion ended at 20 degrees with painful motion 10 degrees, right lateral rotation ended at 20 degrees with painful motion at 15 degrees, and left lateral rotation ended at 15 degrees with painful motion. The Veteran was unable to do repetitive use testing due to pain. The Veteran had additional limitation in range of motion following repetitive use testing and functional loss and/or functional impairment, with contributing factors of disability being less movement than normal, weakened movement, and pain on movement. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the spine which was further described as bilateral muscle spasm. He also had guarding or muscle spasm severe enough to result in abnormal gait. Muscle strength testing showed active movement against gravity and active movement against some resistance. There was no muscle atrophy. Sensation to light touch testing was decreased in the thigh/knee, lower leg/ankle, and foot/toes. Straight leg raising was positive. The Veteran had radiculopathy with moderate paresthesias and/or dysthesias and numbness in the lower extremities. There were no other neurologic abnormalities. The Veteran had IVDS episodes of less than one week over the past twelve months. He used a walker occasionally. The examiner found that the back condition did not impact his ability to work. The Veteran also indicated that the Veteran’s posture was slightly bent forward due to back pain. VA treatment records from April 2013 note low back pain that was stable. July 2013 records indicate that the Veteran presented with weak glutes and core strength which placed more stress on his lower back and created shooting pains going down his legs. It was noted that the Veteran appeared to overuse his back creating pains. There was no bladder changes or neurological incontinence. He described having to sit on a hard surface if he has pain. He leaned far forward over his feet. Prior to June 30, 2010 The Board finds that the preponderance of the evidence is against a rating in excess rating in excess of 20 percent prior to June 30, 2010 for service-connected lumbar spine DJD also diagnosed as IVDS. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to constant back pain, limited endurance, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. While there was pain during range of motion testing, the May 2005 VA examiner found there was only an estimated additional 10 degrees of functional impairment in all planes of lumbar spine range of motion on the basis of repetitive use due to pain with use and limited endurance. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher 40 percent rating. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. In fact, the May 2005 VA examiner indicated that there were no episodes of low back pain forcing prolonged bed rest, and the other evidence of record does not show otherwise. The Board has also considered whether a higher disability rating is warranted for additional functional loss due to pain, weakness, fatigability, incoordination, and other factors. DeLuca, 8 Vet. App. at 204-07. Here, the May 2005 VA examiner found that the Veteran experienced lumbar flexion to 70 degrees with no pain and there was no ankylosis. Additionally, the Board notes that the Veteran was able to perform repetitive use testing to 60 degrees. Given the lack of affirmative evidence to suggest that the Veteran experiences pain, weakness, fatigability, or incoordination that would limit his forward flexion to 30 degrees or less, the Board concludes that an evaluation in excess of 20 percent prior to June 30, 2010 is not warranted. From June 30, 2010 to January 8, 2013 The Board also finds that for the period from June 30, 2010 to January 8, 2013, the preponderance of the evidence is against a rating in excess of 40 percent. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to constant low back pain, local pain, weakness, stiffness, fatigability. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he could only stand for one minute and used a cane and experienced daily flare-ups which last about ten minutes and required rest would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The June 2010 VA examiner found no significant spasm or guarding contributing to any altered spinal contour or gait disturbance, the antalgic gait was attributable to his left knee, and there was no change in active or passive range of motion during repeat testing times three and no additional losses of range of motion, weakness, impaired endurance, incoordination, or instability. Also, June 2011 records from Dr. T.H. indicated that while the Veteran was suffering from back pain and tenderness, there was normal flexion, negative straight leg raising and elevated leg test. The evidence does not reflect symptoms most nearly approximating immobility and consolidation of a joint. The evidence of record is also against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher 60 percent rating. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. The June 2010 VA examiner indicated that the Veteran got up every day and had no incapacitating episodes required prolonged bed rest. The Board has also considered whether a higher disability rating is warranted for additional functional loss due to pain, weakness, fatigability, incoordination, and other factors. DeLuca, 8 Vet. App. at 204-07. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider 38 C.F.R. § 4.40 and 4.45. Here, from June 30, 2010 to January 8, 2013, there is no evidence of ankylosis in the record, and the Veteran is currently receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Given the lack of affirmative evidence to suggest that the Veteran experiences pain, weakness, fatigability, or incoordination that result in unfavorable ankylosis of the entire thoracolumbar spine, the Board concludes that an evaluation in excess of 40 percent from June 30, 2010 to January 8, 2013 is not warranted. From January 9, 2013 to March 20, 2014 Having reviewed the complete record, and after affording the Veteran the benefit of the doubt, the Board finds that for the period from January 9, 2013 to March 20, 2014, the Veteran’s symptoms more nearly approximate a higher 40 percent disability rating. Here, the evidence reflects back pain, severe flare-ups, weakness, and limitation of motion. Although the Veteran was able to achieve forward flexion to 70 degrees, it was with pain, and the Veteran was unable to perform repetitive use testing due to pain. The Veteran also had additional limitation in range of motion following repetitive use testing and functional loss and/or functional impairment, with contributing factors of disability being less movement than normal, weakened movement, and pain on movement. The Veteran also had guarding or muscle spasm severe enough to result in abnormal gait and July 2013 VA treatment records indicated that he leaned far forward over his feet. Given that the Veteran experienced pain during flexion, could not perform repetitive use testing due to pain, less motion than normal, flare-ups, weakness, and pain on movement, the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s back spine disability more nearly approximate the 30 degrees of flexion or less required for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Accordingly, an increased 40 percent rating is warranted for this time period. In order to warrant an evaluation in excess of 40 percent for the Veteran’s lumbar spine disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Neither treatment records nor the VA examination report indicates that there was unfavorable ankylosis of the entire thoracolumbar spine. Rather, these documents reflect findings that there is no ankylosis. The January 2013 VA examiner also indicated that the Veteran had IVDS episodes of less than one week over the past twelve months. There is no other evidence of record which indicates that the Veteran suffered from incapacitating episodes as defined in the applicable regulation, and neither the Veteran nor his representative make such an assertion. With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider 38 C.F.R. § 4.40 and 4.45. In the instant case, as a result of the Board’s decision, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis from January 9, 2013 to March 20, 2014. Accordingly, 38 C.F.R. § 4.40 and § 4.45 are not for consideration for the appeal period. For all periods, regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity radiculopathy associated with service-connected lumbar spine DJD, and these issues will be discussed in the remand section below. Also, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent prior to June 30, 2010 and in excess of 40 percent from June 30, 2010 to January 8, 2013 for service-connected lumbar spine DJD also diagnosed as IVDS. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, for the foregoing reasons, the Board finds that an increased rating of 40 percent, but no higher, is warranted for the service-connected lumbar spine DJD also diagnosed as IVDS from January 9, 2013, to March 20, 2014. REASONS FOR REMAND Lumbar Spine DJD also diagnosed as IVDS from March 21, 2014 Right Lower Extremity Radiculopathy, Left Lower Extremity Radiculopathy Subsequent to the last remand by the Board, VA treatment records were added to the claims file in April 2020. These records include records from March 2020, which indicate that the Veteran received emergency treatment for back pain from Monument Health Rapid City Hospital. Remand is necessary to obtain outstanding treatment records from Monument Health Rapid City Hospital. 38 C.F.R. § 3.159. Also, updated VA treatment records should be obtained and associated with the claims file. Earlier Effective Date for the award of TDIU The Veteran seeks an effective date earlier than January 27, 2014, for the grant of TDIU. In an August 2014 VA Form 21-8940, the Veteran indicated that his back disability made him too disabled to work in March 2010. He was last self-employed as an educator. A February 2016 hearing officer decision granted service connection for TDIU effective March 21, 2014. In a March 2016 hearing officer decision, an earlier effective date of January 27, 2014, was granted. The RO indicated that was the date when the Veteran met the schedular requirements. A TDIU 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 service-connected disability; provided that if there is only one such disability, the disability shall be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). However, where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, where a veteran does not meet the schedular requirements, the Board may only refer the claim to the Director of Compensation Service, for extraschedular consideration. Id. In this case, the Veteran does not meet the schedular requirements for TDIU for the period prior to January 27, 2014. In the June 2010 VA examination report, it was noted that the Veteran could only sit for 15 minutes before his back bothered him and could only stand for a minute. Also, at an April 2012 hearing, the Veteran stated that while presenting a lecture, he could not stand up for the entire time and had to sit down due to pain. The January 2013 VA examination and other treatment reports note the Veteran to have severe back pain and numbness in the lower extremities. Also, in a May 2015 vocational assessment, following a review of the medical evidence, including prior to January 27, 2014, a vocational evaluator noted that limitations associated with the back disability included the inability to life, carry, push, or pull negligible amount of weight. Also significant were limitations in standing, walking, and sitting. Limitations associated with radiculopathy of the lower extremities included inability to walk and stand for short periods without development of significant pain. Navigating safely was an issue causing limitations in balance and stability while attempting to walk or rise from a sitting position. Due to pain, the Veteran was required to sit frequently and lie down frequently to manage pain. The Veteran’s back and radiculopathy resulted in limited physical activity and negatively affected his ability to complete tasks, concentrate on tasks to completion, and follow a normal routine work pattern in the competitive labor market even at the sedentary level. Based on this evidence, the Board finds that the record contains evidence suggesting that the Veteran may be entitled to an award of TDIU on an extraschedular basis prior to January 27, 2014. 38 C.F.R. § 4.16(b). Therefore, a remand is required for the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records from Monument Health Rapid City Hospital and any other facility that has recently treated him for his service-connected back and radiculopathy disabilities. Make two requests for the authorized records from this facility and any other facilities the Veteran identifies, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 3. Refer the Veteran’s claim to the Director of Compensation Service for consideration of an assignment of an effective date earlier than January 27, 2014 for the award of TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.