Citation Nr: 21069677 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 07-20 814 DATE: November 19, 2021 ORDER An initial disability rating greater than 10 percent, prior to April 7, 2008, for low back strain with subjective complaints of numbness and tingling of the lower extremities is denied. An effective date of December 6, 2007, and no earlier, for the assignment of a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis, is granted. FINDINGS OF FACT 1. Prior to April 7, 2008, the Veteran's low back strain did not result in 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 was not greater than 120 degrees, even in consideration of functional loss based on pain, fatigue, weakness, lack of endurance, and/or incoordination after repetitive use; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; intervertebral disc syndrome with incapacitating episodes; or neurologic impairment. 2. An inferred claim of entitlement to a TDIU was received by the Department of Veterans Affairs (VA) on September 13, 2005 and a formal claim for entitlement to a TDIU was received by VA in June 2010; the Veteran first became eligible for a TDIU on a schedular basis on December 12, 2007. 3. Since December 6, 2007, the evidence demonstrates that the Veteran's service-connected disabilities preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 7, 2008, the criteria for an initial disability rating greater than 10 percent for low back strain have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, DC 5237. 2. The criteria for an effective date of December 6, 2007, and no earlier, for the assignment of a TDIU have been met on an extraschedular basis. 38 U.S.C. §§ 5101 (a), 5103A, 5107, 5110; 38 C.F.R. §§ 3.1 (p)(r), 3.155, 3.156, 3.157, 3.159, 3.321(b), 3.341, 3.400(o)(2), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1978 and from December 2003 to June 2004. Additionally, he had long-term service in the United States Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Oakland, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA). Specifically, the June 2007 rating decision granted service connection for a low back strain, rated 10 percent from September 13, 2005. Subsequently, by rating decision dated in March 2009, the RO increased the Veteran's disability rating for low back strain from 10 to 40 percent disabling effective April 7, 2008. With regard to the TDIU claim, the Veteran filed a formal claim for a TDIU in June 2010, and the RO granted that benefit, effective November 30, 2009, in a May 2012 rating decision. However, the Veteran has been alleging he is unemployable due to service-connected disabilities prior to November 2009, as part of his claim for an increased rating. A claim for increased evaluation includes a claim for TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to a TDIU prior to November 30, 2009 is therefore considered to be on appeal as part of the increased rating claim. The Veteran testified at a May 2015 hearing held before the undersigned at the RO; a transcript of the hearing is associated with the claims file. The above issues were previously before the Board in both July 2015 and September 2018 at which times they were remanded for additional development. In January 2020, the Board, in part, denied an initial disability rating greater than 10 percent for the Veteran's low back disability prior to April 7, 2008 and assigned an earlier effective date of April 7, 2008 for the Veteran's award of a TDIU. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Veteran and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board's January 2020 decision pertaining to the issues of entitlement to an initial disability rating greater than 10 percent for the Veteran's low back disability prior to April 7, 2008 and entitlement to an effective date earlier than April 7, 2008 for the Veteran's award of a TDIU. Notably, the Board's January 2020 decision regarding a disability rating greater than 40 percent for the Veteran's low back disability beginning April 7, 2008 was not disturbed. In May 2021, the Board remanded the above issues for further development pursuant to the December 2020 Joint Motion. General Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 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 for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of 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 of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be 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." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the lumbar spine are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the claim at this time. 1. An initial disability rating greater than 10 percent, prior to April 7, 2008, for low back strain with subjective complaints of numbness and tingling of the lower extremities is denied. By way of history, the Veteran injured his lumbar spine during his military service in September 2003. A June 2007 rating decision granted service connection for low back strain, assigning a 10 percent disability rating effective September 13, 2005. Thereafter, the Veteran perfected an appeal of this decision. As above, during the course of the appeal, in a March 2009 rating decision, the RO increased the disability rating to 40 percent effective April 7, 2008. The Veteran's back disability is rated pursuant to 38 C.F.R. § 4.71a, DC 5237 which pertains to lumbosacral strain. Lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the Formula provides for ratings as follows. 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 body 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 combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Of the Notes listed in the regulation, of particular relevance is Note (1) that specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Also relevant is Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated 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. See 38 C.F.R. § 4.25 (combined ratings table). As will be described below, the Veteran does not have a diagnosis of IVDS. Therefore, the rating criteria are inapplicable to his case. As above, the Board's January 2020 decision regarding a disability rating greater than 40 percent for the Veteran's low back disability beginning April 7, 2008 was not disturbed. As such, the Board will only consider the time period from September 13, 2005 to April 6, 2008. The medical evidence relating to the Veteran's lumbar spine disability from September 13, 2005 to April 6, 2008 consists of a VA spine examination report dated in May 2007 as well as a retrospective medical opinion concerning that time period dated in May 2021. During the May 2007 VA examination, the Veteran reported a history of left-sided low back pain, which was constant at a 2 to 3/10 in intensity. He reported that the pain radiated to his neck and down his left posterior leg to the knee. He had no associated weakness or sensory disturbances and there were no noted bowel or bladder changes. He experienced flares in cold weather to an intensity of 9/10 and pain which responds well to Motrin within 30 minutes to an hour. He also experienced worsening of his pain with prolonged sitting of greater than one-half hour or with heavy lifting. He worked in construction and reported that flares occur every one to two weeks, for which he takes Motrin after 30 to 60 minutes. He had missed no work in the past year due to back pain and had no incapacitating episodes. He was about to start acupuncture therapy at VA. He briefly underwent physical therapy at one point, but was unable to continue paying for it. It did offer some relief. In terms of function, the back pain interfered with his ability to lift greater than 50 pounds at work. It did not interfere with his home activities but did interfere with recreation in that he could no longer run and could no longer play basketball. He could walk an estimated two miles for a duration of one hour. He could drive two hours before needing to stop and rest. He ambulated independently without a device and was independent with all activities of daily living. On physical examination of the spine, both curvature and symmetry of the spine appeared normal. There was no tenderness to palpation of the spine, however, there was mild tenderness over the left lumbar paraspinal muscles and there appeared to be a knot in the mid lumbar left-sided paraspinal muscles. Range of motion testing remained without change after three repetitions. He was not limited by weakness, incoordination, lack of endurance, or fatigue. He was able to forward flex to 90 degrees, extend to 30 degrees, laterally flex to the left to 20 degrees, laterally flex to the right to 30 degrees, and laterally rotate to the right and let to 30 degrees each. Neurological examination showed a normal gait with a narrow base. He was able to walk easily on heels and toes. Strength was 5/5 throughout and deep tendon reflexes were brisk and bilaterally symmetric. There was diminished pinprick over the left lateral thigh in an L3-4 distribution. Magnetic resonance imaging of the lumbar spine showed very minimal degenerative disc protrusions at L2-3 and L3-4. These resulted in no significant central canal lateral recess and/or neural foraminal stenosis. Otherwise, the lumbar spine was unremarkable. The bone marrow signal was within normal limits. There was normal alignment. The vertebral body heights and disc heights were relatively well preserved. The conus ended at L1. The distal cord and nerve roots were grossly unremarkable. The impression was an essentially normal lumbar spine with no clinically significant abnormality. Pursuant to the December 2020 Joint Motion, a retrospective opinion concerning functional loss during the Veteran's reported flare-ups during the May 2007 VA examination was obtained in May 2021. Significantly, after an extensive review of all available medical evidence, the May 2021 VA examiner found that there was no discernable functional loss and/or loss of range of motion during flare-ups or after repeated use. As rationale for this opinion, the examiner noted that the Veteran denied missing "work in the past year due to back pain and had no incapacitating episodes" during the May 2007 VA examination. He was working construction at that time and had no history of lost time from work due to his lumbar spine disability. Significantly, even though the Veteran first complained of back pain in 1974, early in his military service, he went on to serve until 1978, then in the National Guard in 1979 and was able to re-enlist in the Air Force from December 2003 to June 2004, without notable loss of military work due to a lumbar spine condition. Next, on physical examination, the Veteran had nearly normal range of motion except a 10 degree loss in left lateral flexion to 20 degrees. This slight decrease can be explained by the, then, discernable "knot in the mid lumbar left-sided paraspinal muscles" consistent with a muscle spasm of a flare-up of his chronic back pain, consistent with his diagnosis of "lumbar back strain associated with mild degenerative joint disease." Definitively, his magnetic resonance imaging (MRI) scan of January 2007 showed an essentially normal lumbar spine with very minimal degenerative disc protrusion at L2-L3 and L3-L4 and no significant central canal, lateral recess and/or neural foraminal stenosis. This January 2007 MRI finding demonstrates essentially a normal spine with no medical evidence to support flare-ups that could or would cause function loss during low back flare-ups nor during repeated use. In addition, there was no other medical evidence showing any loss of range of motion during flare-ups either. The January 2007 MRI supports the diagnosis of "lumbar back strain associated with mild degenerative joint disease" which is not associated with loss of function during flare-ups as there is no discernable medical cause of impairment of function or impairment of range of motion with overuse, repeated use or flare of muscle spasm. In addition, even into 2010 his MRIs were normal and only in June 2010 were there minimal lumbar spine findings on PET (positron emission tomography) scan of "active arthropathy" in "the right facet at L4/5." There was nothing in these reports that would cause impairment of function nor decrease in range of motion findings with flares or after repeated use in mid-2010 either. Also of record are VA treatment records dated prior to April 7, 2008 and records from the Social Security Administration showing that the Veteran was awarded Social Security disability benefits effective December 6, 2007 for muscle and psychiatric disorders. Upon review of the evidence, the Board finds that an initial rating higher than 10 percent is not warranted for the Veteran's low back strain prior to April 7, 2008. As above, under the General Rating, the next higher 20 percent rating is assignable where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees. Significantly, range of motion testing for the thoracolumbar spine during the May 2007 VA examination showed full lumbar flexion to 90 degrees. As such, the Board finds that there is no additional functional deficit of the lumbar spine due to pain. There are no other range of motion findings pertinent to the relevant period on appeal. As the Veteran's thoracolumbar flexion was greater than 60 degrees prior to April 7, 2008, a higher rating for the lumbar spine is not warranted. While the Veteran has contended that he experiences flare-ups during the appeal period, and, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered, there is no indication that the Veteran's flare-ups result in additional loss of motion. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) will be expanded and it is found that flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Significantly, the May 2021 VA examiner found that there was no discernable functional loss and/or loss of range of motion during flare-ups or after repeated use. The opinion was well-reasoned and based on an accurate review of the contemporaneous record. The Board affords it significant probative value. While the May 2007 VA examination does not comply with Correia, the Board notes that a subsequent March 2018 VA spine examiner found that it was not medically appropriate to address pain on passive motion and/or non-weight bearing pursuant to Correia. The evidence of record reflects that the Veteran's symptomatology for lumbar strain warrants no more than a 10 percent disability rating prior to April 7, 2008. The Board finds that no higher rating can be assigned pursuant to any other potentially applicable diagnostic code. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. An effective date of December 6, 2007, and no earlier, for the assignment of a TDIU on an extraschedular basis, is granted. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). However, prior to March 24, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1 (p) (2014). But see 38 C.F.R. § 3.1 (p) (2015) (now providing that a "claim" must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). A veteran may be awarded a TDIU rating if the evidence shows that he or she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable as 60 percent disabling or more, or, if there are two or more disabilities, there shall be at least one disability ratable as 40 percent disabling or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability; that is, whether the Veteran is unable to secure or follow any form of substantially gainful occupation consistent with her education and occupational experience. Hatlestad v. Brown, 5 Vet. App. 524 (1993). 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 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). In this case, the Veteran is service connected for the following disabilities: urethral structure, evaluated at 60 percent disabling; carpal tunnel syndrome of the right upper extremity with radiculopathy, evaluated at 40 percent disabling; low back strain, evaluated at 40 percent disabling; carpal tunnel syndrome of the left upper extremity with radiculopathy, evaluated at 30 percent disabling; cervical strain with degenerative joint disease, evaluated at 20 percent disabling; right shoulder degenerative joint disease and internal derangement with strain and rotator cuff tear, evaluated at 20 percent disabling; right proximal hand, evaluated as 10 percent disabling; left proximal hand, evaluated as 10 percent disabling; tinnitus, evaluated at 0 percent disabling; and hypertension, hearing loss, erectile dysfunction as well as various scars, each evaluated at 0 percent disabling. Significantly, a TDIU has been assigned as of April 7, 2008. The Veteran has met the schedular criteria for a TDIU pursuant to under 38 C.F.R. § 4.16 (a) since December 12, 2007. Yet, there is evidence that the Veteran was unemployable due to his service-connected disabilities as early as December 6, 2007. On September 13, 2005, the Veteran submitted a claim for service connection for a low back disorder. Subsequently, the RO also granted service connection for low back strain assigning an initial 10 percent disability rating effective September 13, 2005 and increasing this rating to 40 percent effective April 7, 2008. The Veteran perfected this appeal with regard to the disability ratings assigned. Therefore, the appeal period before the Board is from September 13, 2005 forward. In June 2010, the Veteran raised a formal claim for a TDIU, indicating that all of his service-connected disabilities precluded him from employment. The Veteran's low back strain evaluation was properly before the Board at that time, based on his appeal of the assigned ratings. By December 2012 rating decision, a TDIU was granted effective November 30, 2009. In July 2015, the Board took jurisdiction of the claim regarding an effective date earlier than November 30, 2009 pursuant to Rice as part and parcel to the Veteran's increased rating claim which had been pending since September 13, 2005. As above, a review of the record shows that the Veteran last worked in construction in approximately 2007. Significantly, records from the Social Security Administration show that the Veteran was awarded Social Security disability benefits effective December 6, 2007 for muscle and psychiatric disorders and show that the Veteran last worked full-time on December 6, 2007. Significantly, during the May 2007 VA examination the Veteran reported that he worked in construction and had missed no work in the past year due to back pain and had no incapacitating episodes. However, during a subsequent February 2009 VA examination the examiner noted that the Veteran was very symptomatic. He could not bend, stoop, crouch, crawl, climb, or balance. He also could not lift. He had not been working since 2007 because of his inability to keep up with his job requirements. A January 2012 VA examiner also noted that the Veteran's lumbar spine disability impacted the Veteran's ability to work in that it limited his ability to lift, walk for more than half a mild, and stand/sit for prolonged periods of time. He last worked in construction in 2007 and reported that he was having difficulty performing occupational tasks while working. More recently, a March 2018 VA examiner opined that the Veteran's lumbar spine disability impacted his ability to work in that it limited him from lifting items with his previous job as a carpenter as well as climbing walls. A May 2021 VA examiner found that the Veteran had some limitation in the occupational environment due to his service-connected lumbar spine disability. These limitations related to the extent and upper limits of weight lifted and carried (limited to 40 pounds), required interval short rest periods during physical oriented work, like construction (15 minute rest breaks twice during an 8 hour work day). There would be no impairment to prolonged sitting, driving, prolonged standing, and/or prolonged walking. Following the May 2021 Board remand, the TDIU issue was referred to the Director of Compensation and Pension for a medical opinion concerning the Veteran's employability prior to April 7, 2008. Significantly, in an August 2021 memorandum, the Director of Compensation and Pension found that an extraschedular TDIU was not warranted. The Veteran has been in receipt of a combined 80 percent disability rating since December 12, 2007 and, thus, has met the schedular requirements for a TDIU since that date. However, the Veteran last worked full-time on December 6, 2007. After affording the appellant the benefit of the doubt, the Board finds that, as early as December 6, 2007, the Veteran's level of disability, given his education, training, and experience, would have rendered it impossible for the average person to obtain or retain substantially gainful employment of some type based solely on his service-connected disabilities. Van Hoose, 4 Vet. App. at 363. The evidence demonstrates that, as of December 6, 2007, the Veteran's service-connected disabilities, collectively, rendered him unable to work in physical labor, particularly in construction. Additionally, it appears that the Veteran was effectively unable to work in a sedentary work environment as of this date given his service-connected disabilities of the upper extremities (which would make it difficult for him to use a computer). As such, the Board finds that the Veteran had been rendered unemployable by his service-connected disabilities since December 6, 2007. While the Director found that the Veteran's service-connected disabilities do not make him unemployable prior to April 7, 2008, based on the medical evidence discussed above particularly the February 2009 VA examination report, the Board finds that the Veteran had been rendered unemployable by his service-connected disabilities since December 6, 2007. Therefore, an extraschedular TDIU effective December 6, 2007 is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.