Citation Nr: 21073972 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-41 207 DATE: December 13, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to May 5, 2021, and in excess of 40 percent thereafter, for a lumbar spine disability, to include on an extraschedular basis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 5, 2021, is denied. Entitlement to a TDIU from May 5, 2021 is dismissed as moot. FINDINGS OF FACT 1. Prior to May 5, 2021, the Veteran's lumbar spine disability was manifested by forward flexion to 90 degrees at worst, and a combined range of motion of 240 degrees at worst; but not by abnormal gait or spinal contour, forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, ankylosis or incapacitating episodes. 2. From May 5, 2021, the Veteran's lumbar spine disability was manifested by forward flexion to 15 degrees at worst (estimated during periods of flare-up and immediately after repeat use), and a combined range of motion of 85 degrees at worst; but not by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 3. Prior to May 5, 2021 the preponderance of the evidence does not show that the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment consistent with his education and work history. 4. From May 5, 2021, the Veteran's combined disability rating is 100 percent; he does not meet the criteria for an award of special monthly compensation, as no disability is considered 100 percent disabling, plus an additional separate disability or disabilities combining to 60 percent disabling. CONCLUSIONS OF LAW 1. Prior to May 5, 2021, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. From May 5, 2021, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. Prior to May 5, 2021, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19. 4. From May 5, 2021, the appeal as to entitlement to a TDIU is moot. 38 U.S.C. §§ 1114, 7105; 38 C.F.R. § 20.202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1988 to October 1994. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual tele-hearing. A transcript of the hearing is of record. The Board previously remanded these matters in December 2020. As the actions specified in the Board's remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In an August 2021 rating decision, the RO granted a higher 40 percent rating for the lumbar spine disability, effective May 5, 2021, and denied entitlement to a TDIU. In addition, the RO granted service connection for left and right lower extremity radiculopathy, and assigned each disability a 20 percent rating, effective May 5, 2021. The Veteran has not submitted a notice of disagreement as to the rating or effective date as to the separate award of the left and right lower extremity radiculopathy and therefore those disabilities will not be discussed herein. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. 1. Entitlement to an initial rating in excess of 10 percent prior to May 5, 2021 and in excess of 40 percent thereafter, to include on an extraschedular basis The Veteran's lumbar spine disability is currently-rated as 10 percent disabling prior to May 5, 2021 and 40 percent disabling thereafter, under Diagnostic Code 5237. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. In April 2021, the Court of Appeals for Veterans Claims (the Court) issued the decision of Chavis v. McDonough, 34 Vet. App. 1 (2021) that held that ankylosis can be met with evidence of the functional equivalent of ankylosis during a flare. Id. at 2. The Court also reiterated that "VA considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness." Id. at 9. The Appellant argued that his spine disability results in the functional equivalent of ankylosis during flare-ups that render him unable to move. Id. at 12. The Court vacated the prior Board denial of an increased rating, remanding the claim for the Board to consider whether the Appellant's symptoms during flare-ups result in the functional equivalent of ankylosis. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. Turning to the relevant evidence of record, the Veteran underwent a VA examination in July 2015. On examination, the Veteran was capable of forward flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees and right lateral rotation to 30 degrees. There was no objective evidence of pain. Repetitive-use testing did not result in additional loss of range of motion. The examiner did not examine the Veteran for functional ability with repeated use over time "due to the time constraints of the appointment." The examiner noted localized tenderness of the lumbar spine not resulting in abnormal gait or abnormal spinal contour. The Veteran reported experiencing right-side mid-back pain if sitting in one position or if driving his car longer than 30 minutes. The Veteran described the pain as "a dull ache," that often radiates to his left neck and left low back, but not to his legs. There was no lower extremity numbness or tingling, and no loss of bowel or bladder control. The Veteran took pain medication 4 days per week for pain relief. Pursuant to the July 2015 VA exam, x-rays of the Veteran's lumbar and thoracic spine were obtained. The lower spine x-ray revealed no significant loss of interspace height. Subtle bony ridging along the anterior margins of L4 on L5. Satisfactory alignment of the lumbar spine, with no compression injuries. The examiner noted degenerative disc disease of the lower thoracic spine at T10-11 and T11-12. The thoracic spine x-ray revealed a thoracic spine within normal limits. November 2015 and March 2016 VA treatment notes reflect no lumber tenderness or limited range of motion. See November 16, 2015 VA Primary Care Note, March 4, 2016 VA Treatment Note. During a May 2017 VA PTSD examination, the Veteran reported that he takes prescription medication for muscle and joint pain in his lower back, which he stated also helps with his migraine headaches. See May 2017 VA Examination. In a June 2017 correspondence, the Veteran stated that he cannot bend over, twist, or lift without the use of muscle relaxers and pain medications. The Veteran reported that he experiences functional loss due to pain which affects every aspect of his day-to-day life professionally and personally. The Veteran reported that his grandchildren cannot sit on his lap and that it is difficult for him to even play with them due to the pain felt, even with the use of medications. See June 22, 2017 VA Form 9. An August 2018 VA treatment note reflects the Veteran's complaints of worsening thoracic and low back pain, worsening in the last 4 days. He feels nausea and dizzy at times due to the pain, which he rated as 10 of 10. See August 17, 2018 VA Nursing Note. In a March 2019 VA primary care note, the Veteran reported that his lower back pain has worsened to the point that it is no longer effectively controlled with the use of intramuscular Toradol injections and muscle relaxants. He also reported developing new symptoms of numbness down his posterior thighs. See March 15, 2019 VA Primary Care Note. A July 2019 private treatment note reflects the Veteran's complaints of low and mid back pain. Palpation of the lumbar spine revealed tenderness along the paraspinal muscles, with no obvious deformity. The provider noted the Veteran's range of motion as "decreased to flexion/extension with increased back pain." The Veteran's symptoms were aggravated by activity and decreased with heat. His back pain was noted by the provider as "worsening." See July 17, 2019 Private Consultation. At his November 2020 Board hearing, the Veteran testified that due to his lumbar disability he could only sit or stand for certain periods of time. He cannot bend over and has to squat to pick something up. The pain in his back gives him headaches which cause migraines. The Veteran experiences radiating pain that starts with his mid-back and radiates up into his head. The pain also radiates down. The Veteran recalled helping his parents with an hour of yard work which resulted in him being house ridden for the next day and a half due to back pain and headaches, because he "couldn't move." If he does exercise that is too strenuous, he cannot "function as a human being." The Veteran testified that his pain is excruciating and that he has "no range of motion." The Veteran gets flare-ups of back pain and must position himself to get out of bed in the morning. His pain progresses throughout the day and he must lay flat on his back in bed, rather than rolling on either side, so that his back spasms will relax. If he does attempt to roll right or left, the back spasms are so bad that "it actually will make [him] scream out loud." He gets injections almost monthly to relief pain and approximately 2-3 times per week he cannot leave the house due to severe pain. The Veteran also uses a heating, electrolysis machine, and TENS vest for pain management. See November 2020 Board Hearing Transcript. In light of the Veteran's Board testimony of worsening symptoms, he was afforded another VA examination in May 2021. On examination, the Veteran was capable of forward flexion to 20 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 20 degrees and right lateral rotation to 20 degrees. Range of motion (ROM) testing on all planes of motion exhibited pain. Passive ROM was the same as active ROM testing. Pain, fatigability, weakness, interference with sitting and standing, and less movement than normal resulted in ROM loss of forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. There was evidence of pain on passive motion and on rest/non-movement. However, the examiner estimated the Veteran's ROM immediately after repetitive use and during flare-ups as forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. The Veteran was unable to stay in one position for more than 5 minutes during the exam without needing to change positions (from sitting to standing, etc). He was unable to bend forward more than 20 degrees, thus unable to put on shoes. The Veteran had severe intermittent radicular pain in the bilateral lower extremities, moderate numbness, and moderate paresthesias and/or dysesthesias. There was no ankylosis and no other neurologic abnormalities. The examiner noted a diagnosis of IVDS of the thoracolumbar spine resulting in episodes of bed rest having a total duration of at least 1 week but less than 2 weeks during the prior 12 months. The Veteran explained that 1-2 times per month the pain becomes so bad that he is in bed and then has to go in and have Toradol injections. The Veteran reported that his condition had progressively gotten worse, stating, "I have back pain every day. There is not a day that I don't have back pain. Sometimes it locks up. I can't sit for very long. I can't stand for very long. I can't lift heavy objects. I can't do a lot of physical labors. I can't do repetitive motions. By mid-day or end of the day I'm extremely fatigue[d]. Sometimes it's hard for me to walk or stand up straight. The back pain causes severe headaches." Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent prior to May 5, 2021 is warranted. During the period prior to May 5, 2021, the evidence clearly reflects that the Veteran was capable of forward flexion well in excess of the 60 degrees or less contemplated by higher ratings. Further, based on the measurements in the July 2015 examination the Veteran had a combined range of motion in excess of the 120 degrees or less contemplated by a 20 percent rating. The July 2015 VA examination report did not reflect that the Veteran's disability was manifested by ankylosis of the spine of any kind. Similarly, treatment records are silent for ankylosis of the spine. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 10 percent for a lumbar spine disability is warranted prior to May 5, 2021. Based on the findings in the May 2021 VA examination report, the evidence shows that the Veteran was capable of forward flexion of 15 degrees at worst. Based on the foregoing, the Board finds that a rating in excess of 40 percent from May 5, 2021, is not warranted. The May 2021 examiner noted that there was no evidence of ankylosis, and the Veteran's treatment records are silent for any evidence of ankylosis of any kind. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 40 percent for a lumbar spine disability is warranted from May 5, 2021. The Board has also considered whether the Veteran's symptoms approximate ankylosis in light of Chavis v. McDonough. In Chavis, the Court noted the Dorland's definition of ankylosis as "complete limitation of motion." See Dorland's Illustrated Medical Dictionary at 94 (33d ed. 2019). The Board has reviewed the objective medical evidence of record and does not find that the Veteran's symptoms, including during periods of flare-up, approximate ankylosis. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran's radiculopathy of the bilateral lower extremities has already been granted, and therefore is already contemplated by its assigned ratings. No other neurologic abnormalities have been noted as being associated with the Veteran's lumbar spine disability. No other associated neurologic abnormalities are reflected in the VA examination reports or the Veteran's treatment records at any time prior to May 2021. As such, additional separate compensable ratings are not warranted. Id. With respect to the possibility of assigning a higher rating under 38 C.F.R. § 4.40 and § 4.45, the Board has considered whether the Veteran has demonstrated additional functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include on repetitive-use or during flare-ups, that would warrant the assignment of a higher rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. The May 2021 examiner noted pain resulting in functional loss on repeated use over time and during flare-ups, with the examiner estimating a forward flexion loss to 15 degrees during flare-ups. Although the Veteran has subjectively reported functional loss due to pain and painful motion, the only additional loss of function or range of motion noted by the 2021 examiner was estimated based on the Veteran's statements during repeated use over time and during flare-ups, for which the Veteran was afforded a 40 percent disability rating under D.C. 5237. Accordingly, the Board finds that the overall level of disability demonstrated by the Veteran throughout the period on appeal is not commensurate with assigning a higher schedular rating under the Deluca criteria. Although the Board acknowledges that the Veteran has reported pain, there is nothing in the record that suggests the pain resulted in functional loss beyond what is already contemplated by the assigned 10 and 40 percent ratings, for the respective periods. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. The findings provided in the examination reports are adequate to decide the claim. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finally, the Board acknowledges the May 2021 VA examiner's diagnosis of IVDS. Although the Veteran reported that 1-2 times per month the pain becomes so bad that he is in bed, there is nothing in the record to indicate that this bedrest was physician-prescribed. Accordingly, the Board need not consider the application of the Formula for Rating IVDS Based on Incapacitating Episodes under Diagnostic Code 5243. No additional higher or alternative ratings under different Diagnostic Codes can be applied. At the Veteran's November 2020 Board hearing, the Veteran's representative, on his behalf, raised the issue of entitlement to an extraschedular rating. Therefore, the Board is required to address whether referral for extraschedular consideration is warranted. Doucette v. Shulkin, 28 Vet. App. 366 (2017). At the hearing, the Veteran's representative testified that the Veteran's lumbar spine disability "effects his ability to work." Moreover, the Board notes the Veteran's testified that his back pain causes headaches which turn into migraines. Under 38 C.F.R. § 3.321(b)(1), ratings shall be based, as far as practicable, upon the average impairments of earning capacity. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Court outlined the framework for determining entitlement to an extraschedular evaluation. First, the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 115. This obliges the Board to compare "the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. at 115. When this requirement is satisfied, the Board must then determine whether the Veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" or "frequent periods of hospitalization." Id. at 116 (quoting 38 C.F.R. § 3.321 (b)(1)). If both these inquiries are answered in the affirmative, the Board must refer the matter to the Compensation Service Director for the third inquiry, a determination of whether to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation. Id, at 116; see generally Todd v. McDonald, 27 Vet. App. 79, 89-90 (2014); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (outlining the "elements that must be established before an extraschedular rating can be awarded"). Under Thun, the first step is that the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 115. The Board acknowledges the Veteran's assertion that his lumbar spine disability effects his ability to work, but does not find anything in the record to indicate that his disability has resulted in a marked interference with his employment at any time during the period on appeal. The Board notes that the Veteran is separately compensated for radiculopathy of the right and left lower extremities and for migraine headaches. The Veteran's other symptoms related to his lumbar spine are addressed above and are contemplated by the schedular ratings already assigned. Therefore, as the Veteran's disability picture is not so exceptional "that the available schedular evaluations for that service-connected disability are inadequate," a referral for extraschedular analysis is not warranted. In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes his symptoms to be more severe than contemplated by his currently-assigned disability ratings. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his lumbar spine disability is of sufficient severity to warrant higher ratings under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability ratings in this case and, therefore, accords the objective medical findings greater weight than the Veteran's subjective complaints of increased symptomatology. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 10 percent prior to May 5, 2021 and in excess of 40 percent thereafter, for the Veteran's lumbar spine disability is warranted. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU The Veteran's claim for a TDIU was raised during the pendency of his appeal for an increased rating for a lumbar spine disability, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. 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. 38 C.F.R. § 4.16. Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to a service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Extraschedular referral for the period from March 23, 2015 to November 18, 2020 is not warranted Prior to November 19, 2020, the Veteran was in receipt of service-connection for PTSD (rated 30 percent disabling); lumbar spine disability (rated 10 percent disabling); and tinnitus (rated 10 percent disabling). The Veteran's combined disability rating did not meet the schedular criteria for a TDIU until November 19, 2020. Having determined that the Veteran is not eligible for assignment of a schedular TDIU for the period from March 23, 2015 to November 18, 2020, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities, such that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. Turning to the relevant evidence, the Veteran underwent VA examinations of his lumbar spine, and tinnitus disabilities in July 2015. At his lumbar spine examination, the VA examiner found that the Veteran's lumbar condition impacts his ability to work in that the Veteran reported he is unable to sit more than 15 minutes without developing back pain. At his tinnitus examination, the VA examiner found that the Veteran's tinnitus impacts his ability to work in that the Veteran has difficulty hearing in background noise. In February and May 2017, the Veteran underwent VA examinations of his PTSD and headaches disabilities. At the PTSD examination, the VA examiner determined that the Veteran's disability causes occupational and social impairment with occasional decrease in work efficiency. The Veteran reported that he has been employed since discharge from the military. Most of his employment had been in the auto business where he served in management and sales. For the prior 8 months, the Veteran had been employed at an auto dealership and before that he worked at another dealership in a nearby city. At his headaches examination, the VA examiner found that the Veteran's headache condition impacts his ability to work, noting that the Veteran reported that the prior Monday he took half a day off due to a migraine. On average the Veteran takes 1-2 days per month off due to migraines. The Veteran underwent a cervical procedure in November 2018 and a December 2018 treatment note documents that he was "back to work [in sales] already." The Veteran reported that he gets tired easily but that his low back was bothering him more so than his neck at that point. See December 5, 2018 Private Treatment Note. A July 2019 private treatment note reflects that the Veteran was working full-time in sales for a metal works business and had been on disability for the prior 3 years. See July 17, 2019 Private Treatment Note. The evidence of record indicates that the Veteran had been employed since discharge until at least April 2020. See February 2017 VA PTSD Examination, November 2020 Board Hearing Transcript. Though the Veteran testified that he had been out of work since April, he clarified that he stopped working "due to COVID," and not due to his back. However, he has not been able to take some of the jobs that he has been offered due to not being able to perform the duties because of his back. Moreover, in a December 2020 correspondence, the Veteran, through his representative, stated that he "intends to maintain employment at this time." In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation during the period from March 23, 2015 to November 18, 2020. The Board also finds it significant that the Veteran responded to a December 2020 request from VA to provide further information needed to substantiate his claim for a TDIU, by stating that he would not be completing the TDIU form as he intended to maintain employment. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. 190 (1991). There is nothing in the Veteran's medical records to suggest that his service-connected PTSD, lumbar, or tinnitus disabilities cause such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). Entitlement to a TDIU from November 19, 2020 to May 4, 2021 The Veteran's claims file shows that the earliest date the Veteran became eligible for consideration of a schedular TDIU was November 19, 2020. From that date, the Veteran was in receipt of service-connection for PTSD (rated 70 percent disabling); lumbar spine disability (rated 10 percent disabling); and tinnitus (rated 10 percent disabling). The Veteran's combined disability rating was 90 percent. Because he had one service-connected disability rated at 60 percent or higher, the Veteran met the minimum percentage requirements under 38 C.F.R. § 4.16(a) for a schedular TDIU from November 19, 2020. Thus, the question before the Board is whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment, consistent with his educational and occupational background, from November 19, 2020 to May 4, 2021. At his November 2020 Board hearing, the Veteran testified that his lumbar spine disability impacts his ability to work and that he had been unemployed since April. The Veteran testified that he did not stop working due to his back, rather he stopped working "due to COVID." But he clarified he has not "been able to take some of the jobs that [he has] been offered due to not being able to perform the duties because of [his] back. See November 2020 Board Hearing Transcript. A December 2020 VA treatment note documents that the Veteran was employed up until April of this year when he was laid off because of "Covid-19 restrictions, and since then his place of employment has gone out of business." See December 22, 2020 VA Pain Consult Note. In December 2020, the Veteran underwent additional VA examinations for his PTSD and headache disabilities. At the PTSD examination, the VA examiner determined that the Veteran's disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At the headaches examination, the VA examiner determined that the Veteran's disability impacted his ability to work in that the Veteran is unable to perform physical labor due to increased pain. He had to quit his job due to missing 3-4 days of work per month. The Veteran has had to turn down multiple job opportunities due to the manual labor expectations. Both examiners noted that the Veteran had been unemployed since April 2020. In December 2020, the RO sent the Veteran a VA Form 21-8940 and requested that he complete the form. However, also in December 2020 the Veteran's representative sent a reply correspondence stating that the Veteran would not be completing a VA Form 21-8940 as he intended to maintain employment at the time. See December 10, 2020 and December 29, 2020 Correspondence. In light of the Veteran's Board hearing testimony of worsening symptoms, the Veteran was afforded a new VA back conditions examination in May 2021. The examiner noted an impact on the Veteran's ability to work. The Veteran reported he could not be on his feet for 8 hours, but also could not take a job that requires him to sit in a chair for 12 hours. He likewise cannot take a job that requires physical labor. The Veteran needs to have mobility and flexibility and stated that he is reduced to sales work or office work. He has to move so he doesn't "lock up." He cannot sit or stand for longer than 10-15 minutes at a time without requiring a position change. On review of the Veteran's VA and private treatment records for this period, the Board notes that the Veteran's treating clinicians do not make any suggestion that the Veteran is unemployable at any time from November 19, 2020 to May 4, 2021. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation during the period from November 19, 2020 to May 4, 2021. In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause him some level of functional impairment. However, there is no evidence to support a finding that these functional impairments otherwise render him unable to secure or follow a substantially gainful occupation. Finally, as discussed above, the Veteran has not provided the information or VA form requested by VA to adjudicate his claim of entitlement to a TDIU rating, specifically a VA Form 21-8940. See Wood, 1 Vet. App. 190 (1991). Indeed, the Veteran indicated he intended to maintain employment. Given the evidence that the Board does have, the Veteran's service-connected disabilities do not limit him such that he is unable to obtain or retain substantially gainful employment. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for a TDIU for the period from November 19, 2020 to May 4, 2021. 38 U.S.C. § 5107(b); Gilbert v. Derwinski,1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 4.3. Entitlement to a TDIU from May 5, 2021 From May 5, 2021, the Veteran is in receipt of a combined disability rating of 100 percent. Generally, a TDIU may be assigned only where the schedular rating is less than total. 38 C.F.R. § 4.16(a). However, the United States Court of Appeals for Veterans Claims (the Court) has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 at the (s) rate. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Of relevance here, the Court has specifically held that there could be a situation where a veteran has a schedular total rating for a single service-connected disability, but could establish entitlement to a TDIU rating for another service-connected disability or disabilities in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more. See 38 U.S.C. § 1114(s); Bradley, 22 Vet. App. at 293; Buie, 24 Vet. App. at 248. In other words, a TDIU claim will not automatically be mooted; rather, the Board must consider the specific facts of each case to determine if a veteran's benefits can be maximized. Since May 5, 2021, the Veteran's disabilities have been rated as follows: PTSD (70 percent); migraine headaches (50 percent); lumbar spine disability (40 percent); left lower extremity radiculopathy (20 percent); right lower extremity radiculopathy (20 percent); and tinnitus (10 percent). From this date, the Veteran's combined disability rating is 100 percent. Notably, the Veteran does not have a schedular total (100 percent) rating for a single service-connected disability, plus a separate disability or disabilities that combine to 60 percent, so as to support a grant of SMC under 38 U.S.C. § 1114(s). Accordingly, the Court's holding in Bradley is inapplicable here, and the Veteran's combined disability rating of 100 percent from May 5, 2021 renders the Veteran's claim for a TDIU moot during this period. Because no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal for this issue, and it is dismissed. See 38 U.S.C.§ 7105(d)(5); 38 C.F.R. § 20.202. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.