Citation Nr: 21002064 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-20 999 DATE: January 12, 2021 ORDER Prior to December 11, 2019, entitlement to a disability rating in excess of 20 percent for service-connected herniated nucleus pulposis L4-5 and ruptured disc L5-S1, status post right L4-5 and L5-S1 hemilaminectomy and discectomy with degenerative disc disease (hereafter referred to as a “low back condition”) is denied. Beginning December 11, 2019, entitlement to a disability rating in excess of 40 percent for service-connected low back disability is denied. Beginning March 6, 2019, entitlement to a 20 percent disability rating for the separate award for right lower extremity sciatic radiculopathy associated with service-connected low back disability is granted. Beginning May 11, 2016, entitlement to a 20 percent disability rating for the separate award for left lower extremity sciatic radiculopathy associated with service-connected low back disability is granted. Beginning December 11, 2019, entitlement to a 20 percent disability rating for the separate award for right lower extremity sciatic radiculopathy associated with service-connected low back disability is denied. Beginning December 11, 2019, entitlement to a 20 percent disability rating for the separate award for left lower extremity sciatic radiculopathy associated with service-connected low back disability is denied. Prior to December 11, 2019, referral for entitlement to total disability based on individual unemployability (TDIU), on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to December 11, 2019, the Veteran’s service-connected low back condition did not manifest limitation of forward flexion to at least 30 degrees or ankylosis of any kind. 2. Beginning December 11, 2019, the Veteran’s service-connected low back disability did not manifest any form of ankylosis or incapacitating episodes having a total duration of at least six weeks during the past twelve months. 3. Beginning March 6, 2019, the Veteran’s right leg sciatic radiculopathy manifests moderate, incomplete paralysis. 4. Beginning May 11, 2016, the Veteran’s left leg sciatic radiculopathy manifests moderate, incomplete paralysis. 5. Beginning December 11, 2019, the Veteran’s right leg sciatic radiculopathy does not manifest moderately severe symptoms. 6. Beginning December 11, 2019, the Veteran’s left leg sciatic radiculopathy does not manifest moderately severe symptoms. 7. Prior to December 11, 2019, the severity of the Veteran’s service-connected disabilities did not warrant referral for extraschedular consideration of TDIU. CONCLUSIONS OF LAW 1. Prior to December 11, 2019, the criteria for entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected low back condition are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235–5242. 2. Beginning December 11, 2019, the criteria for entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243. 3. Beginning March 6, 2019, the criteria for entitlement to a 20 percent disability rating for the separate award for right leg sciatic radiculopathy are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520. 4. Beginning May 11, 2016, the criteria for entitlement to a 20 percent disability rating for the separate award for left leg sciatic radiculopathy are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520. 5. Beginning December 11, 2019, the criteria for entitlement to a disability rating in excess of 20 percent disability rating for the separate award for right leg sciatic radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520. 6. Beginning December 11, 2019, the criteria for entitlement to a disability rating in excess of 20 percent disability rating for the separate award for left leg sciatic radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520. 7. Prior to December 11, 2019, the criteria for referral for TDIU, to include on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A Board hearing was conducted via video conference in conjunction with the RO in Phoenix, Arizona. A transcript of this hearing is contained within the electronic claims file. See March 6, 2019, Hearing Transcript (Tr.). At the time of an October 2019 decision, the only claim in front of the Board was the issue of entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected low back condition. In that decision, the Board remanded the claim, noting that there were outstanding VAMC records and the need for an updated examination. The Board also took up the issue of entitlement to TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), and ordered VA to send to the Veteran a proper application for TDIU. In November 2019, VA medical center (VAMC) records from the Sierra Vista center were uploaded; VA also sent that month to the Veteran a complete application for TDIU. Thus, with all prior remand directives having been fulfilled, the Board finds that adjudication now may proceed. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran originally was awarded service connection for his back condition in a March 1970 rating decision; he was awarded a noncompensable rating effective January 9, 1970. A January 1979, rating decision awarded the Veteran a temporary total rating beginning August 7, 1978, and a 20 percent rating beginning October 1, 1978. A January 1981 decision decreased the Veteran’s rating to 10 percent, effective April 1, 1981, and a subsequent December 1981 Board decision found that no increase above 10 percent was warranted. A January 1996 rating decision reinstated the previous 20 percent rating effective January 31, 1995. The instant claim stems from the Veteran’s December 2014 request for an increase, and the March 2015 rating decision on appeal continued the Veteran’s 20 percent rating; the Veteran timely appealed. During the pendency of the appeal, VA issued an August 2020 rating decision, in which it awarded the Veteran a 40 percent rating for his back, 20 percent ratings for radiculopathy of the sciatic nerves, and TDIU; all awards were effective December 11, 2019—the date of the Veteran’s VA examination provided to him on remand. Thus, the issues have been reframed as they appear on this decision’s first page. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. DCs 5235 through 5242 pertain to various disease and injuries of the spine. Invertebral disc syndrome based on incapacitating episodes (IVDS) (DC 5243), however, is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). Under 38 C.F.R. § 4.71a, DCs 5235–5242, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating pertains only to the cervical spine, so it will not be discussed. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). Under DC 5243, incapacitating episodes of IVDS having a total duration of at least six weeks during the past twelve months warrants a 60 percent rating. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Notes (1) and (2). When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran’s symptoms are most prevalent (“flare-ups”) due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204–07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Radiculopathy of the sciatic nerve is rated under 38 C.F.R. § 4.124a, DC 8520. An 80 percent disability rating is warranted for complete paralysis with the following symptoms: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent disability rating is warranted for incomplete paralysis with severe symptoms marked by muscular atrophy. A 40 percent disability rating is warranted for incomplete paralysis with moderately severe symptoms. A 20 percent disability rating is warranted for incomplete paralysis with moderate symptoms. A February 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicated that Veteran suffers from degenerative arthritis of the spine. The Veteran did not report flare-ups; however, functional loss was described as difficulty picking up anything off the ground, an inability to tie shoes, and the requirement that the Veteran hire someone to complete his yardwork. Range of motion was recorded as follows: forward flexion: 0–100 degrees; extension: 0–30 degrees; bilateral lateral flexion: 0–30 degrees; bilateral lateral rotation: 0–25 degrees. Pain was noted for forward flexion. There was no evidence of pain with weight bearing or localized tenderness or pain on palpation of the joint associated soft tissue of the thoracolumbar spine. Repetitive use testing was performed, but there was no additional loss of range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal. There was no muscle atrophy, radiculopathy, ankylosis, or IVDS. The examiner noted that the Veteran’s ability to work would be impacted by an inability to lift more than fifty pounds, as well as an inability to engage in repeated bending. On his June 2015 Notice of Disagreement (NOD), the Veteran indicated that he has chronic back pain, which prevents him from having “any kind of a good life.” The Veteran also challenged the adequacy of his February 2015 VA examination, noting that the examiner was a licensed nurse practitioner who did not take any x-rays and examined the Veteran for “15 minutes.” In his May 2016 VA Form 9, the Veteran alleges that his back condition has rendered him unemployable since 1996. VA medical center (VAMC) records from May 2016 indicate that the Veteran was diagnosed with left leg sciatica and complaints of numbness and tingling also begin in June 2016. At his hearing, the Veteran testified that he cannot be on his feet for more than two hours without having to lie down to alleviate the pain, which typically resolves within an hour. This happens approximately four–five times per day. The Veteran also endorses an inability to bend over. See Tr. at 4, 6. The Veteran indicated that he has experienced “shooting pain down [his] legs and burning on the bottoms of [his] feet,” for about “two years.” Id. at 7. March 2019 private radiological reports discuss the Veteran’s current back condition. May 2019 records indicate that the Veteran underwent kyphoplasty surgery. A December 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicated that Veteran suffers from IVDS as well as a degenerative condition of the spine. The Veteran reported flare-ups, which he described as severe, occurring every day, precipitated by constant pain, and alleviated by nothing. Functional loss was described as an inability to walk more than one-fourth of a mile without severe pain, stand for prolonged periods of time without sever pain, and bending over to pick up heavy items. Range of motion was recorded as follows: forward flexion: 0–45 degrees; extension: 0–15 degrees; right lateral flexion: 0–15 degrees; left lateral flexion: 0–10 degrees; bilateral lateral rotation: 0–15 degrees. Pain was noted for all ranges of motion. There was evidence of pain with weight bearing but none for localized tenderness or pain on palpation of the joint associated soft tissue of the thoracolumbar spine. Observed repetitive use testing was performed, and there was no additional loss of range of motion characterized as the following: forward flexion: 0–30 degrees; extension: 0–10 degrees; bilateral lateral flexion: 0–10 degrees; bilateral lateral rotation: 0–10 degrees. The Veteran was not examined immediately after repeated use over time, but pain significantly limited functional ability with repeated use over time and was described as the following limitation in ranges of motion: forward flexion: 0–20 degrees; extension: 0–10 degrees; bilateral lateral flexion: 0–10 degrees; bilateral lateral rotation: 0–5 degrees. The Veteran likewise was not examined during a flare-up, and pain significantly limited functional ability with flare-ups. The examiner opined that the Veteran would experience the same limitation for ranges of motion as that described for repeated use over time. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal except for bilateral hip strength, which was rated as 4/5. There was no muscle atrophy or ankylosis. The examiner noted that the Veteran suffered from radiculopathy of the bilateral sciatic nerves. Constant pain was mild, and intermittent pain was moderate. There was no paresthesias and/or dysesthesias and numbness. Overall, the examiner characterized the Veteran’s radiculopathy as moderate. The examiner also noted that the Veteran suffered from IVDS; however, within the last twelve months, the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The examiner noted that the Veteran’s ability to work would be impacted by his back condition the same ways described by the Veteran’s flare-ups. 1. Prior to December 11, 2019, entitlement to a disability rating in excess of 20 percent for service-connected low back disability is denied. For this time period, there is no evidence that the Veteran suffered from IVDS, so only the general rating criteria for the thoracolumbar spine will be discussed. In order to achieve a higher rating, the Veteran must experience limitation of forward flexion to at least 30 degrees. The evidence of record does not establish this fact. Neither the VAMC nor the private treatment records discuss ranges of motion for the Veteran’s thoracolumbar spine, so they provide little more than confirmation that the Veteran received routine care and treatment for his low back pain. While the Veteran is competent to report low back pain throughout his various filings and via testimony, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), the February 2015 VA examination documented that the Veteran experienced limitation of flexion to 100 degrees and that he was not experiencing any flare-ups. While the Board recognizes the Veteran’s pain, it does not find that such pain would equate to an additional 70 degrees in limitation of forward flexion, warranting a 40 percent disability rating. The other evidence of record does not disclose that the Veteran has ankylosis of any form. Thus, the Board is satisfied that, prior to December 11, 2019, the Veteran’s low back condition warrants only a 20 percent disability rating, even considering his subjective complaints of pain. See Deluca, 8 Vet. App. at 204–07; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5235–5242. The Veteran also questions the adequacy of the February 2015 VA examination because it was performed by a licensed nurse practitioner and did not include x-ray imaging. See June 2015 NOD. When the adequacy of an examination is challenged, the Board still may assume the competency of any VA medical examiner if the examiner is qualified through education, training, or expertise to offer medical diagnoses, statements, or opinions. Cox v. Nicholson, 20 Vet. App. 563, 568 (2007); 38 C.F.R. § 3.159(a)(1). The examiner need not be a physician and can be another medical professional, such as a licensed nurse practitioner. Id. at 571. The Board recognizes that, in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit held that the “presumption of competency requires nothing more than is required for veteran claimants in other contexts—simply a requirement that the veteran raise the issue.” Id. at 1308. Since the Veteran is obligated to raise the issue of a medical examiner’s competency in the first instance, once done, the presumption has no further effect, and VA must provide to a veteran, absent unusual circumstances, the necessary information to raise a competency challenge, including the examiner’s curriculum vitae and other information about qualifications of a medical examiner. Id. The Federal Circuit was careful to note that “to the extent that the decision here is inconsistent with Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010), those cases are overruled.” Id. at 1307 n.1. The Federal Circuit did not disrupt the holding in Cox. Thus, the Board finds that the Veteran’s generalized displeasure with the fact that his examination was performed by a licensed nurse practitioner and not a medical doctor, is not enough to raise a challenge to the competency of the February 2015 VA examiner, as Cox clearly has stated that such medical professionals fall squarely within the regulations’ requirements. Furthermore, the Board is not persuaded that failure to procure new x-rays of the Veteran’s spine warrants condemnation of the examination. There is no requirement that every examination for a musculoskeletal condition be accompanied by new x-ray findings. If Congress or VA wanted such a rule, then it would be prescribed via statute or regulation. The fact that the Veteran had a degenerative condition of his thoracolumbar spine is not contested, and further images of his spine would not provide the Board with anything it already does not know. The Veteran’s spine is evaluated based on limitation of motion and other possible diagnoses of the spine (none of which are applicable here). X-ray images will not reveal either to the Board. Therefore, the Board finds that VA was under no obligation to obtain new x-rays for the Veteran and that the February 2015 VA examination is adequate. 2. Beginning December 11, 2019, entitlement to a disability rating in excess of 40 percent for service-connected low back disability is denied. Beginning this date, the Veteran’s service-connected low back condition was recharacterized as IVDS. Thus, both sets of criteria will be discussed. The only evidence relevant to this time period is the December 2019 VA examination. In pertinent part, that report reveals that, while the Veteran has IVDS, he has not experienced, within the last twelve months, any incapacitating episodes requiring bed rest prescribed by a doctor. Thus, the Veteran would not qualify for a compensable rating, so it is to his benefit to evaluate his condition under the general rating criteria for the spine. See 38 C.F.R. § 4.71a, DC 5243. With respect to that criteria, at worst, the Veteran experiences limitation of forward flexion to 20 degrees. This alone qualifies him for a 40 percent rating. The Veteran, however, does not experience ankylosis of any form, which precludes him from receiving any rating in excess of 40 percent. See 38 C.F.R. § 4.71a, DCs 5235–5242. Thus, the Board finds that his appeal during this timeframe is denied. 3. Effective dates and evaluations for bilateral sciatic radiculopathy. As noted in the general rating criteria for the spine, associated neurological conditions are to be compensated separately. See 38 C.F.R. § 4.71, DCs 5235–5242 at Note (1). The earliest indication that the Veteran was experiencing radiculopathy with an associated diagnosis of sciatica is a May 11, 2016, VAMC treatment note. That note provides only a diagnosis for the Veteran’s left leg and surrounding June 2016 treatment notes document only complaints in the Veteran’s left leg. While the Veteran testified that that he has experienced symptoms of radiculopathy in both legs since roughly 2017, see Tr. at 7, the contention that he has experienced radiculopathy in his right leg for as long as he has in his left leg is underscored by the other contemporaneous medical evidence of record. Aside from the Veteran’s testimony, the only evidence that establishes radiculopathy in the Veteran’s right leg is the December 2019 VA examination. Therefore, the Board will assign an effective date of May 11, 2016, for the Veteran’s left leg sciatic radiculopathy and an effective date of March 6, 2019 (the date of the Veteran’s hearing testimony), for his right leg sciatic radiculopathy. With respect to the overall evaluation of the Veteran’ radiculopathy, the Board finds that a disability rating in excess of 20 percent is not warranted. The May and June 2016 VAMC records document that the Veteran experiences numbness and tingling in the left leg. According to the December 2019 VA examination report, at worst, the Veteran experiences moderate intermittent pain but also experiences constant mild pain. There was no paresthesias and/or dysesthesias or numbness. The only other additional evidence pertaining to the severity of the Veteran’s radiculopathy are his statements made at his hearing, which he described as “shooting pain down [his] legs and burning on the bottom of [his] feet.” Tr. at 7. Thus, the Board finds that the evidence of record shows that the Veteran’s bilateral sciatic radiculopathy more accurately is characterized as moderate, and he is not entitled to a disability rating in excess of 20 percent. See 38 C.F.R. § 4.124a, DC 8520. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34–35 (1994). Where the schedular rating is less than total, a total disability rating for compensation may be assigned 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 disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). The Board notes that even with the earlier effective dates assigned for the radiculopathy, under the application 38 C.F.R. § 4.25, the Veteran only has met the schedular rating criteria for TDIU under 38 C.F.R. § 4.16(a) as of December 11, 2019 (even considering the earlier effective dates for radiculopathy. However, because the issue of entitlement to TDIU was raised pursuant to Rice, it spans the entire length of the appeal for the Veteran’s increased rating claim for his back. Thus, the Board must consider whether TDIU, prior to December 11, 2019, is proper. Because the Veteran did not meet the schedular criteria before that date, the only available option is TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration. Upon review of the evidence of record, both lay and medical, the Board finds that referral for an extraschedular consideration of TDIU is not warranted. On his VA Form 21-8940, the Veteran indicated that he last worked full time in 1997 attributed to his degenerative back disease. In 2000, the Veteran obtained an associate degree in computer repair. The February 2015 VA examiner noted that the Veteran’s back condition prevented him from lifting more than fifty pounds or engaging in repeat bending—not that he is precluded from securing or following substantially gainful employment. The private treatment records do not discuss the Veteran’s ability to work, but a January 29, 2019, VAMC note indicates that the Veteran is able to work around his ranch for three to four hours at a time. While the Veteran testified that he can be on his feet for no more than two hours at a time, the Veteran also has a degree in computer repair, which may not always necessitate that he be on his feet. In conclusion, prior to December 11, 2019, the evidence of record does not warrant referral to the Director of the Compensation Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.