Citation Nr: 21004476 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-18 962 DATE: January 27, 2021 ORDER Entitlement to special monthly compensation (SMC) based on housebound status (HB) is denied. Entitlement to special monthly compensation for loss of use of feet is granted. Entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period prior to May 23, 2011 is denied. Entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period from May 23, 2011 to July 17, 2011, is denied. Entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period beginning July 17, 2011 is dismissed. FINDINGS OF FACT 1. At the time of the decision granting TDIU, service connection was in effect for posttraumatic stress disorder, evaluated as 50 percent disabling; spondylosis with degenerative disc disease of the lumbar spine (back disability), evaluated as 40 percent disabling; tinnitus evaluated as 10 percent disabling; radiculopathy of the left lower extremity, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable; his combined disability rating was 80 percent. 2. Currently, the Veteran’s posttraumatic stress disorder is evaluated as 50 percent disabling, the back disability is evaluated as 60 percent disabling, radiculopathy of the left lower extremity is evaluated as 40 percent disabling, tinnitus is evaluated as 10 percent disabling and bilateral hearing loss is evaluated as noncompensable; his combined disability rating is 90 percent. 3. The Veteran is in receipt of total disability based on individual unemployability (TDIU) based on the combined impact of his service-connected disabilities. 4. The evidence shows that the Veteran is in need of aid and assistance from another due to loss of use of both feet. 5. For the period prior to May 23, 2011, the evidence does not show that the Veteran’s service-connected low back disability results in an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule criteria; the disability has not necessitated frequent hospitalizations, nor has it caused marked industrial impairment. 6. For the period from May 23, 2011 to July 17, 2011, the evidence does not show that the Veteran’s service-connected low back disability results in an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule criteria; the disability has not necessitated frequent hospitalizations, nor has it caused marked industrial impairment. 7. For the period from July 17, 2011, the combined effect of multiple disabilities cannot be considered in determining an individual extraschedular rating for those combined disabilities; the Board’s award of a TDIU for the period from July 17, 2011 otherwise renders the issue of entitlement to an extraschedular rating moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC based on housebound status are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352, 4.63, 4.71a (2019). 2. The criteria for entitlement to special monthly compensation for loss of use of feet have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352, 4.63, 4.71a (2019). 3. The criteria for entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period prior to May 23, 2011 are not met. 38 U.S.C. §§ 1155, 5107, 7104, 7105; 38 C.F.R. §§ 3.321 (b), 20.101; 82 Fed. Reg. 57230 (Dec. 8, 2017). 4. The criteria for entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period from May 23, 2011 to July 17, 2011 are not met. 38 U.S.C. §§ 1155, 5107, 7104, 7105; 38 C.F.R. §§ 3.321 (b), 20.101; 82 Fed. Reg. 57230 (Dec. 8, 2017). 5. A combined extraschedular disability rating is not permitted as a matter of law, and the issue of entitlement to an extraschedular rating for the period beginning July 17, 2011 is otherwise moot. 38 U.S.C. §§ 1155, 5107, 7104, 7105; 38 C.F.R. §§ 3.321 (b), 20.101; 82 Fed. Reg. 57230 (Dec. 8, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August 1977 to August 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from April 2010 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a higher rating for a low back disability was previously before the Board in September 2015. In a September 2015 decision, the Board, in pertinent part, denied a rating in excess of 10 percent for the low back disability, prior to May 23, 2011, denied a rating in excess of 40 percent for a low back disability from May 23, 2011, to October 16, 2013, and granted a higher rating of 60 percent for a low back disability from October 16, 2013. The Veteran appealed the issue of a higher rating prior to October 16, 2013 for the low back disability to the United States Court of Appeals for Veterans Claims (Court). In February 2017, the Court issued a Memorandum Decision vacating the September 2015 Board decision with regard to the issue of entitlement to a higher rating for the low back disability on an extraschedular basis, and remanded the issue with instructions for the Board to determine whether referral of the back disorder claim for extraschedular consideration is warranted. The Court affirmed the issues of entitlement to a higher schedular rating for the low back disability for the periods from May 14, 1999 until May 23, 2011, and from May 23, 2011 until October 16, 2013, and dismissed the issues of entitlement to higher schedular ratings for lower extremity radiculopathy and to his back disability for the period beginning on October 16, 2013. In November 2017, the Board remanded all issues for further development. The Board acknowledges that in written argument received in September 2017, the Veteran’s attorney argued that the Veteran was entitled to a higher schedular rating for his low back disability prior to May 23, 2011. However, as noted above, the Court’s Memorandum Decision indicates that the portion of the Board’s September 2015 decision that addressed the matter of a higher schedular rating prior to May 23, 2011 was affirmed. Therefore, the Board’s decision regarding the rating prior to May 23, 2011 is final and will not be further addressed by the Board Special Monthly Compensation The Veteran seeks entitlement to SMC on the basis of A&A or HB status. SMC is designed to provide a higher level of compensation to Veterans who, by reason of the singular or combined effects of service-connected disabilities, face challenges above and different than the loss of earning capacity the rating schedule is designed to evaluate. 38 C.F.R. §§ 3.350, 4.1. 1. Entitlement to special monthly compensation (SMC) based on need for the regular aid and attendance of another (A&A) and/or housebound status (HB) SMC/HB may be awarded on either of two bases. Statutory housebound is granted when a Veteran has a single disability rated totally (100 percent) disabling and an additional disability or disabilities independently rated a combined 60 percent disabling. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The total disability rating requirement may be met by a finding of TDIU where that award is based on one single condition; even though an award of TDIU allows consideration of multiple conditions as a single disability under 38 C.F.R. § 4.16 (a), entitlement to SMC does not allow such. Bradley v. Peake, 22 Vet. App. 280 (2008); VAOGCPREC 66-91. Factual HB, the second basis for this level of SMC, also requires a single disability rated totally (100 percent) disabling, to include TDIU based on one condition. Additionally, the Veteran must demonstrate that his service-connected disabilities render him unable to leave the immediate premises of his home. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); Bradley v. Peake, 22 Vet. App. 280 (2008). This does not mean a Veteran can never leave his house, only that he must generally stay within the immediate surroundings. Occasionally leaving for appointments is allowable, but generally the Veteran must “stick close to home.” Here, the Veteran has been granted a TDIU. It is unclear from the record as to whether the TDIU was granted based on one disability or multiple disabilities. In a September 2013 rating decision, the AOJ granted entitlement to individual unemployability based on service-connected disabilities. Although using the plural for disabilities, the AOJ did not specify which disabilities were the basis of the TDIU grant. At the time of this decision, service connection was in effect for posttraumatic stress disorder, evaluated as 50 percent disabling; spondylosis with degenerative disc disease of the lumbar spine (back disability), evaluated as 40 percent disabling; tinnitus evaluated as 10 percent disabling; radiculopathy of the left lower extremity, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable. Based on the assigned evaluations for each disability at the time of the TDIU grant, the Veteran’s TDIU could not be based on a single disability, but must have been based on a combined evaluation. Even if one would argue that the radiculopathy of the left lower extremity and back disability should be considered a single disability as under 38 C.F.R. § 4.16 (a), entitlement SMC does not allow combining of the disabilities to meet the single disability criterion. Bradley v. Peake, 22 Vet. App. 280 (2008); VAOGCPREC 66-91. The Board acknowledges that later the AOJ assigned a 60 percent evaluation for the back beginning in October 16, 2013. Despite this, this occurred after the TDIU was granted. Therefore, the evidence shows that the Veteran’s TDIU was not based on a single disability but instead on multiple disabilities. In fact, the Veteran’s own unemployability application states that he could no longer secure or follow any substantially gainful occupation due to his back disability, PTSD, tinnitus and bilateral hearing loss. See Veteran’s Application for Increased Compensation Based on Unemployability dated August 2011. None of the Veteran’s service-connected disabilities are rated as 100 percent disabling independently at any time during the appeal period. As discussed above, his TDIU is not due to single service-connected condition. Hence the threshold schedular requirement for HB under any theory is not met, and an SMC/HB benefit may not be granted. 2. Entitlement to special monthly compensation for loss of use of feet Turning to the greater SMC benefit of A&A, neither the authorizing statute nor the implementing regulations establish a need for a single total disability rating, or even a finding of total disability. A&A requires a factual finding that service-connected disabilities render a Veteran in need of the regular assistance of another person to attend to the activities of daily living (dressing and undressing, hygiene, toileting, etc.) or to protect himself from the normal daily hazards and dangers of his environment. 38 C.F.R. §§ 3.350, 3.52(a). SMC at this level may also be paid based on finding that a Veteran is permanently bedridden, has anatomical loss or loss of use of both feet, has anatomical loss or loss of use of one hand and one foot, or is blind in both eyes (vision of 5/200 or less). 38 C.F.R. §§ 3.350, 3.52(a). Loss of use of a hand or foot is defined as having “no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.” 38 C.F.R. § 4.63. The Board finds that evidence shows that the Veteran has loss of use of both feet. The Veteran was afforded a Compensation and Pension Examination for Aid and Attendance in March 2019. The examiner noted that the Veteran was unable to walk without AFOs or cane and was limited in very short distances. His caregiver had to dress him and assist him with bathing and occasionally with toileting and grooming. She prepared all meals, but the Veteran was able to feed himself. The Veteran’s back condition with peripheral neuropathy impacted his ability to protect himself from his environment. He had a history of frequent falls due the condition. As noted above, he is unable to dress, undress, bathe, groom himself or handle toileting without assistance. The examiner opined that his functional impairment was permanent. The examiner opined that the Veteran’s SMC for A&A was at least as likely as not proximately due to or the result of the left lower extremity radiculopathy. The Veteran is significantly limited on his ability to walk and unable to walk without the use of AFO brace to his bilateral lower extremities. The braces kept his feet from dropping and allowed him to have some form of structural control. The peripheral neuropathy examination report noted that the Veteran’s degenerative disc disease was a chronic disease, once the degeneration process starts, it continues and can lead to a cascading of other symptoms. In the May 2019 examination, the examiner opined that the functioning was so diminished that amputation with prosthesis would equally serve the Veteran in the left lower extremity. The examiner explained that the Veteran had foot drop to the left foot and was unable to use his foot for ambulation without AFO brace to provide stability. In people with amputation of the foot, a prosthesis does the same function as an AFO brace. The examiner noted objective weakness, sensory deficits and symptoms to the right lower extremity. The Veteran’s ADLs and daily activities are impacted by both the left and right lower extremity pain and weakness. He needed AFO braces to keep his bilateral feet from dropping and allowing him to have some form of structural control. He could not walk more than 10 to 15 feet and must have a cane for those distances. Without the AFO braces, he is unable to walk without high-risk of fall. He is limited to standing to less than 5 minutes due to bilateral lower extremity weakness and pain caused by degenerative disc disease of the spine and sacroiliitis. The examiner watched the Veteran walk for five feet from the power scooter into the exam room and watched the Veteran nearly fall doing this walk. The examiner opined that his back disability is a chronic disability and it has progressed causing increased symptoms. The Board acknowledges that the Regional Office noted that more recent examination show that the Veteran can ambulate. The Board finds that the Aid and Assistance Examination, Peripheral Examination and Back examination provide a more thorough and detailed evaluation of the Veteran’s disability than treatment records. Treatment records noted by the Regional Office refer to follow-up treatment following surgery for the Veteran’s carpal tunnel and do not provide a detailed examination of the Veteran back or radiculopathy. Accordingly, the Board finds that the Veteran is in need of aid and assistance from another due to loss of use of both feet. Therefore, entitlement to SMC due to a need for aid and assistance due to loss of use of feet is warranted. 3. Entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period prior to May 23, 2011 The AOJ granted a total disability evaluation based on unemployability due to service-connected disabilities beginning July 17, 2011. The Board will consider whether an extraschedular evaluation is warranted for the Veteran’s back disability prior to July 17, 2011. By way of background, entitlement to service connection for a back disability was granted by the Board in June 2009. In April 2010, the AOJ assigned a 10 percent evaluation effective May 14, 1999. The Veteran’s attorney filed a notice of disagreement with this rating in June 2010. She noted that the January 2009 examiner did not test flexion. The attorney noted that the Veteran had radiculopathy symptoms in both lower extremities and that radiculopathy should be rated separately. Ordinarily, the VA schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Consideration of an extraschedular rating under 38 C.F.R. § 3.321 (b) requires a three-step inquiry. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. 111. When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. The Board has jurisdiction to review determinations of the Director of Compensation Service or Undersecretary for Benefits regarding a veteran’s entitlement to an extraschedular rating. Anderson v. Shinseki, 23 Vet. App. 423 (2009). Effective January 8, 2018, VA has amended 38 C.F.R. § 3.321 (b)(1) to clarify that an extraschedular evaluation is to be applied to an individual service-connected disability when the disability is so exceptional or unusual that it makes application of the regular rating schedule impractical. The amended rule stipulates that an extraschedular evaluation may not be based on the combined effect of multiple service-connected disabilities. As noted above, the Veteran received a 10 percent rating for his back prior May 23, 2011. The Veteran’s back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 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. 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). With regard to the first element of Thun, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture as caused by his service-connected back disability. During the Veteran’s January 2009 back examination, the Veteran reported low back pain with flare-ups every month or every two months and lasted one to two days. Rest alleviated his flare-up. He reported that he lost 1 week of work in the last 12 months due to back pain. He reported decreased motion, weakness and pain. With regard to the second element of Thun, the probative evidence of record does not support that the Veteran’s back disability causes marked interference with employment. Indeed, the Veteran’s back disability certainly impacted his ability to perform certain physical functions. He noted in his TDIU application that he could no longer handle the work at the Heating Cooling company due to his back symptoms. He was in pain which slowed him down so he could not get the job done. He changed jobs and worked at a retirement center in a less strenuous job. He reported that it worked out for a while but eventually even the less strenuous work became unbearable due to the pain his back. The Veteran was granted unemployability when he was unable to work at the retirement center any longer. Prior to stopping work, he was able to work at the retirement community from March 2009 to July 2011. He reported in his unemployability application that he lost two days of work per month while working for the retirement center. This would not be considered marked interference with employment. Additionally, there is no evidence that the Veteran’s service-connected back disability has resulted in the Veteran having frequent periods of hospitalization for related symptoms; indeed, the record does not show any hospitalization for this disability. See January 2009 Back examination. While symptoms related to the Veteran’s back disability alone may interfere with his employment, they do not cause marked interference, i.e., beyond that contemplated by the disability ratings assigned for the period prior to May 23, 2011. See 38 C.F.R. § 4.1 (“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”). 4. Entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period from May 23, 2011 to July 17, 2011 The Veteran was assigned a 40 percent evaluation beginning May 23, 2011 under DC 5243. With regard to the first element of Thun, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture as caused by his service-connected back disability. During the Veteran’s March 2011 back examination, the Veteran reported increased pain, stiffness, weakness, fatigability and left leg pain. He reported that his left side pain interfered with sleep. He used a cane all of the time for assistance with ambulation and a Velcro back brace when working. He reported he could not bend, crawl, go up and down ladders or lift. He had decrease walking at work due to pain. He reported flare-ups that occur every week. During the examination, there was no objective evidence of painful motion, spasm, weakness or tenderness. He denied incapacitating episodes in past 12 months. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. Therefore, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss and the Veteran has not identified any symptoms that are not contemplated by 4.40, 4.45, and 4.59. The evidence of record does not identify any factors which may be considered to be exceptional or unusual and that take the disability outside the usual rating criteria. As the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran’s disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. With regard to the second element of Thun, the probative evidence of record does not support that the Veteran’s back disability causes marked interference with employment. Indeed, the Veteran’s back disability certainly impacted his ability to perform certain physical functions. He noted in his TDIU application, he could no longer handle the work at the Heating Cooling company due to his back symptoms. He was in pain which slowed him down so he could not get the job done. He changed jobs and worked at a retirement center in a less strenuous job. He reported that it worked out for a while but eventually even the less strenuous work became unbearable due to the pain his back. The Veteran was granted unemployability when he was unable to work at the retirement center any longer. Prior to stopping work, he was able to work at the retirement community from March 2009 to July 2011. He reported in his unemployability application that he lost two days of work per month while working for the retirement center. This would not be considered marked interference with employment. Additionally, there is no evidence that the Veteran’s service-connected back disability has resulted in the Veteran having frequent periods of hospitalization for related symptoms; indeed, the record does not show any hospitalization for this disability. While symptoms related to the Veteran’s back disability alone may interfere with his employment, they do not cause marked interference, i.e., beyond that contemplated by the disability ratings assigned for the period from May 23, 2011 to July 17, 2011. See 38 C.F.R. § 4.1 (“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”). 5. Entitlement to a higher initial rating on an extraschedular basis for a low back disability for the period beginning July 17, 2011 The issue of a higher initial rating on an extraschedular basis for a low back disability is before the Board. The evaluations assigned for the back have been affirmed by the Court in a February 2017 Memorandum Decision. Here, the Veteran’s back disability is evaluated as 10 percent from May 1999, 40 percent from May 23, 2011 and 60 percent from October 2013. The Veteran and his attorney claim that his back and right lower extremity disabilities cause impairment not already considered by the rating criteria, and therefore, an extraschedular evaluation is warranted. The Board acknowledges that the history of the way the Veteran’s back and radiculopathy have been evaluated includes errors. For instance, it is unclear why the Veteran’s back and right lower extremity disability are evaluated together when the left lower extremity radiculopathy is assigned a separate evaluation. The Court acknowledged that the Board ignored certain clauses in 38 C.F.R. § 4.71a, DC 5243 and did not require bed rest prescribed by a physician. The Court found the errors to be harmless. In the February 2017 Memorandum Decision, the Court found that the Board did not consider whether his lower back claim should be referred to an appropriate agency official for extraschedular consideration. The Court remanded this issue to the Board so that the Board could consider if a referral for extraschedular consideration was needed. In November 2017, the Board referred the issue of entitlement to an extraschedular rating for a low back disability to the VA Director of Compensation Service for a determination. Specifically, the Board asked for the Director of Compensation Service to consider the collective impact of the Veteran’s service-connected disabilities, particularly any service-connected radiculopathy. The Director of Compensation Service found that an increased extraschedular evaluation for the Veteran’s back was not warranted. From July 17, 2011, the Veteran is receiving a TDIU. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), superseded in part by regulation, 82 Fed. Reg. 57230 (Dec. 8, 2017), the Federal Circuit indicated that the TDIU provision only accounts for instances in which a veteran’s combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a “gap-filling” function. Id. It accounts for situations in which a veteran’s overall disability picture establishes something less than total unemployability, but where the impact of a veteran’s disabilities is nonetheless inadequately represented. Id. As the Veteran has been granted TDIU, he is deemed to have total unemployability and there is no “gap” to fill by § 3.321(b). Therefore, an extraschedular rating for the Veteran’s back is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.