Citation Nr: 21006168 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-40 252 DATE: February 3, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an initial rating of 20 percent, for the period prior to September 1, 2017, for service-connected lumbar arthritis; lumbar intervertebral disc syndrome; and lumbar stenosis (lower back condition) is granted. Entitlement to an initial rating in excess of 20 percent prior to December 13, 2019, and in excess of 40 percent thereafter, for service-connected lower back condition is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), for the period from October 21, 2015 to August 31, 2017, to include on an extra-schedular basis, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension began during active duty service or is otherwise related to an in-service injury, event, or disease. 2. For the period prior to September 1, 2017, the Veteran’s lower back condition manifested with subjective complaints of pain with prolonged activities, including sitting and standing. Objective findings include dextroscoliosis. There are no subject complaints or objective findings of bladder or bowel dysfunction. 3. For the period prior to December 13, 2019, the Veteran’s lower back condition did not manifest with: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire thoracolumbar spine. 4. For the period beginning December 13, 2019, the Veteran’s lower back condition did not manifest with unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309, 3.310. 2. For the period prior to September 1, 2017, the criteria for a 20 percent rating for service-connected lower back condition, but no more, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code (DC) 5242, 5243. 3. The criteria for an initial disability rating for service-connected lower back condition in excess of 20 percent prior to December 13, 2019, and in excess of 40 percent from thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1964 to March 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions, dated September 2015 and December 2015, issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in November 2019. In September 2019, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See September 2019 Board Hearing Transcript. As an initial matter, the Board notes that, during the pendency of the appeal, the Veteran filed a claim of entitlement to a TDIU due to his service-connected lower back and knee conditions. See November 2016 VA Form 21-8940. As such, the Veteran’s claim of entitlement to a TDIU became part and parcel to his claim of entitlement to higher initial rating for his service-connected lower back condition, which is effective from October 21, 2015. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Though a TDIU claim was initially denied in a January 2017 rating decision, it was ultimately granted in a November 2017 rating decision, effective September 1, 2017. However, entitlement to a TDIU prior to September 1, 2017, remains part and parcel of the lower back condition increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Additionally, the Board notes that the Veteran is in receipt of a temporary total disability rating from August 31, 2016, through February 28, 2017. Therefore, the issue of entitlement to a TDIU, is before the Board on appeal and is properly included in the list of issues before the Board. Additionally, the Board notes that, following the November 2019 Board remand, the Veteran’s lower back condition was assigned a 40 percent rating, effective December 13, 2019, in a September 2020 rating decision. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). Service Connection 1. Entitlement to service connection for hypertension is denied. Factual Background. In March 2015, the Veteran filed a claim seeking service connection for, inter alia, hypertension. See March 2015 VA Form 21-526EZ. In a September 2015 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim. In an October 2015 Notice of Disagreement (NOD), the Veteran appealed the denial of service connection. This appeal was ultimately perfected and is the matter currently before the Board. The Veteran’s service treatment records (STRs) are silent with respect to a diagnosis of or treatment for hypertension. See STR-Medical. In September 2015, the Veteran underwent a VA examination, wherein he informed the examiner that he was diagnosed with hypertension in 1979. The examiner did not opine as to whether or not the Veteran’s hypertension was related to service. See September 2015 VA Hypertension Disability Benefits Questionnaire (DBQ); September 2015 VA Medical Opinion DBQ. In December 2019, the Veteran underwent a second VA examination, in which the Veteran reported receiving a diagnosis of hypertension in 1979. The examiner opined that the Veteran’s hypertension was less likely than not related to service. In support of this opinion, the examiner noted that the Veteran’s STRs were silent with respect to treatment or medications for hypertension and his in-service blood pressure measurements were not consistent with a hypertension diagnosis. See December 2019 VA Hypertension DBQ; December 2019 VA Medical Opinion DBQ. Analysis. Establishing service connection on a “direct” basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, certain chronic diseases, including hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The determination as to whether these requirements for service connection are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of hypertension, which is identified as a chronic condition under 38 C.F.R. § 3.309(a). See Boston VA Healthcare System (VAHCS) records, received March 2020 in CAPRI. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The evidence of record shows that the Veteran was not diagnosed with hypertension until 1979, approximately 14 years after his separation from service, and therefore outside the applicable presumptive period. See September 2015 VA Hypertension DBQ; December 2019 VA Hypertension DBQ. As such, the Veteran is not entitled to service connection for hypertension on a presumptive basis. As noted above, the Veteran has a current diagnosis of hypertension, and therefore the first element of service connection on a direct basis has been met. Regarding the second element of service connection, the Board finds there is no competent evidence of an in-service occurrence, injury, or disease. The Veteran’s STRs are silent for any medications, treatments, or diagnosis related to hypertension. See STR-Medical. Further, to date, the Veteran has not submitted any evidence or statements demonstrating or suggesting an in-service event. Indeed, the Veteran has consistently reported that he was diagnosed with hypertension in 1979, approximately 14 years following separation from service. See September 2015 VA Hypertension DBQ; December 2019 VA Hypertension DBQ. As the evidence is silent with respect to an in-service event, the Board finds that the second element of service connection on a direct basis has not been met. Nevertheless, even if the Board were to ignore the lack of evidence supporting an in-service event, the preponderance of the evidence is against finding a medical nexus between the Veteran’s hypertension and the Veteran’s active duty service. In December 2019, the Veteran underwent a VA examination in which the examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by military service. In support of this opinion, the examiner noted that the Veteran’s STRs were silent with respect to treatment or medications for hypertension. The examiner also noted that the Veteran’s in-service blood pressure measurements were not consistent with a hypertension diagnosis. See December 2019 VA Medical Opinion DBQ. To date, the Veteran has not submitted any medical or lay evidence supporting or indicating a medical nexus, rendering the December 2019 VA examination as the only probative evidence concerning such. Accordingly, given no other evidence of record to satisfy the nexus requirement, the Board finds that the third element of service connection on a direct basis has not been met. Lastly, the Board notes that the Veteran has asserted that his hypertension is related to his diagnosed chronic obstructive pulmonary disorder (COPD) and lung cancer. However, the Veteran is not service connected for either of these conditions. Because a service-connected disability is required for secondary service connection, service connection on a secondary basis must be denied. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for hypertension. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the Veteran timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Diseases or injuries of the spine are rated using the General Ratings Formula for Diseases and Injuries of the Spine (Formula). 38 C.F.R. § 4.71a, General Rating Formula. The Formula is to be used with or without symptoms such as pain, 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; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. Id. A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for: unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 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. Id. Lastly, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Additionally, the Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, any associated objective neurologic abnormalities, including bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id. at 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. 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 rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Note (2). Further, when intervertebral disc syndrome (IVDS) is present (DC 5243), a veteran’s disease or injuries can also be rated based on incapacitating episodes, if such results in a rating higher than what is warranted under the General Formula. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Under the IVDS Formula, a 10 percent rating is warranted for incapacitating episodes totaling at least one week, but less than two weeks, during the past 12 months. Id. A 20 percent rating is warranted for incapacitating episodes totalling at least two weeks, but less than four weeks, during the past 12 months. Id. A 40 percent rating is warranted for incapacitating episodes totalling at least four weeks, but less than six weeks, during the past 12 months. Id. Lastly, a 60 percent rating is warranted for incapacitating episodes totalling at least six weeks during the past 12 months. Id. For purposes of evaluations under the IVDS Formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Factual and Procedural History. In a December 2015 rating decision, the Veteran was granted service connection for his lower back condition and awarded a 10 percent disability rating, effective October 21, 2015. Thereafter, in March 2016, the Veteran submitted an NOD as to the initial rating. In a September 2017 rating decision, the rating was increased to 20 percent, effective September 1, 2017. In a September 2020 rating decision, the rating was increased to 40 percent, effective December 13, 2019. The Veteran’s VA medical records show that he has consistently presented with chronic lower back pain that intensifies with prolonged activity and reduced range of motion (ROM) of the thoracolumbar spine. They also indicate that the Veteran was diagnosed with dextroscoliosis in November 2015 and was prescribed tizanidine for muscle spasms in October 2016. See Boston VAHCS records. In November 2015, the Veteran underwent a VA examination in which he reported experiencing limitations in bending, kneeling, and squatting, as well as daily flare-ups, lasting two to three hours. The examiner noted an abnormal initial ROM, with flexion to 70 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. The examiner also noted that the Veteran did not demonstrate a loss of functional ability following repetitive use. The examiner further noted that there was insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability during flare-ups or following repetitive use over time. Lastly, the examiner noted that a November 2015 radiology report documented moderate dextroscoliosis. See November 2015 VA Back Conditions DBQ. In September 2017, the Veteran underwent a VA examination in which he reported experiencing intermittent episodes of increased back pain. The examiner noted an abnormal initial ROM, with flexion to 40 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The examiner also noted that the Veteran did not demonstrate a loss of functional ability following repetitive use. Additionally, the examiner noted that the Veteran had IVDS, but that he had not experienced any incapacitating episodes in the past 12 months. Lastly, the examiner noted that there was insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability during flare-ups or following repetitive use over time. See September 2017 VA Back Conditions DBQ. In a September 2019 Board hearing, the Veteran reported experiencing chronic lower back pain and, on bad days, an inability to get out of bed. However, the Veteran denied experiencing incapacitating episodes for which he was treated with bed rest. See September 2019 Board Hearing Transcript. In December 2019, the Veteran underwent a VA examination in which he reported experiencing flare-ups once per week, lasting approximately one day. The examiner noted an abnormal initial ROM, with flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. The examiner also noted that the Veteran did not demonstrate a loss of functional ability following repetitive use. Additionally, the examiner noted that the Veteran had IVDS, but that he had not experienced any incapacitating episodes in the past 12 months. Lastly, the examiner noted that functional ability is not significantly limited by pain, weakness, fatigability, or incoordination during flare-ups or following repetitive use over time. See December 2019 VA Back Conditions DBQ. In August 2020, an addendum opinion was obtained, from the December 2019 examiner, in which the examiner acknowledged that the Veteran reported experiencing flare-ups, but concluded that, after obtaining the Veteran’s lay history and current subjective complaints, combined with a review of available records, he had no basis to determine additional loss of function or motion during such flare-ups. See August 2020 VA Medical Opinion DBQ. (continued on the next page) Analysis. 2. Entitlement to an initial rating of 20 percent, for the period prior to September 1, 2017, for service-connected lower back condition, is granted. 3. Entitlement to an initial rating in excess of 20 percent prior to December 13, 2019, and in excess of 40 percent thereafter, for service-connected lower back condition, is denied. Upon review of the Veteran’s entire history, the Board concludes that the Veteran’s lower back condition warrants an initial rating of 20 percent for the period prior to September 1, 2017; however, the preponderance of the evidence weighs against finding that the Veteran’s lower back condition warrants an initial rating in excess of 20 percent prior to December 13, 2019, and in excess of 40 percent thereafter. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from October 21, 2015, the effective date of the award of service-connection, to present. As discussed above, the Veteran is currently in receipt of a 10 percent rating for the period prior to September 1, 2017, pursuant to 38 C.F.R. § 4.71a, DC 5242. The Veteran is in receipt of a 20 percent rating for the period beginning September 1, 2017, and ending December 12, 2019, and a 40 percent rating thereafter, pursuant to 38 C.F.R. § 4.71a, DC 5242-5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen. 38 C.F.R. § 4.27. The Period Prior to December 13, 2019. As discussed above, there are several symptoms or manifestations that a spinal injury or disease could present with, which warrant a 20 percent rating under the General Ratings Formula, including an abnormal spinal contour such as scoliosis. 38 C.F.R. § 4.71a, General Ratings Formula. Here, for the entire period on appeal, the Veteran has been diagnosed with dextroscoliosis. See November 2015 VA Back Conditions DBQ; Boston VAHCS records. As such, an initial rating of 20 percent is warranted for the period prior to December 13, 2019. However, a rating in excess of 20 percent is not warranted at any time prior to December 13, 2019. As discussed above, to obtain a rating in excess of 20 percent under the General Rating Formula, the symptomatology or manifestations must include ankylosis or forward flexion of 30 degrees or less. 38 C.F.R. § 4.71a, General Ratings Formula. Additionally, where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Within this context, the Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his disability causes additional functional loss (i.e., “the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance”), including as due to pain. 38 C.F.R. § 4.40); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45. However, the veteran’s functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Here, the evidence shows that, prior to December 13, 2019, the Veteran’s ROM presented, at worst, with forward flexion limited to 40 degrees. See November 2015 VA Back Conditions DBQ; September 2017 VA Back Conditions DBQ; Boston VAHCS records. Further, the record contains no indication of ankylosis of the spine. See id. Therefore, even considering any additional functional impact of the Veteran’s lower back condition as noted above and his reports of pain, the fact remains that the evidence does not show that his forward flexion has been limited to 30 degrees or less at any point prior to December 13, 2019. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Veteran’s functional loss did not equate to the criteria required for a 40, 50, or 100 percent rating under the General Ratings Formula. Additionally, to warrant a rating in excess of 20 percent under the IVDS Formula, the Veteran must have experienced, at a minimum, incapacitating episodes totalling four weeks. 38 C.F.R. § 4.71a, Formula for Rating IVDS. Here, the evidence indicates that the Veteran did not experience any incapacitating episodes prior to December 13, 2019. See November 2015 VA Back Conditions DBQ; September 2017 VA Back Conditions DBQ; Boston VAHCS records. Indeed, while the Veteran has reported periods of being unable to get out of bed, he has denied being prescribed bedrest by a physician. See September 2019 Board Hearing Transcript. As such, the criteria for a rating in excess of 20 percent, for the period prior to December 13, 2019, have not been met. Period Beginning December 13, 2019. For the period beginning December 13, 2019, the Veteran is currently rated at 40 percent, which represents the highest schedular rating available for diseases and injuries of the thoracolumbar spine based on ROM. See 38 C.F.R. § 4.71a, General Ratings Formula. As such, to warrant a rating in excess of 40 percent, the symptomatology or manifestations of the Veteran’s lower back condition must include ankylosis. See id. Here, as noted above, the record contains no indication of ankylosis of the thoracolumbar spine. See December 2019 VA Back Conditions DBQ; Boston VAHCS records. As discussed above, where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. See DeLuca v. Brown, supra. However, when a veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion, and a higher rating requires ankylosis, 38 C.F.R. §§ 4.40 and 4.45 are not for application. Additionally, to warrant a rating in excess of 40 percent under the IVDS Formula, the Veteran must have experienced, at a minimum, incapacitating episodes totalling six weeks. 38 C.F.R. § 4.71a, Formula for Rating IVDS. Here, the evidence indicates that the Veteran has not experienced any incapacitating episodes since December 13, 2019. See December 2019 VA Back Conditions DBQ; Boston VAHCS records. Indeed, as noted above, while the Veteran has reported periods of being unable to get out of bed, he has denied being prescribed bedrest by a physician. See September 2019 Board Hearing Transcript. In sum, with resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s lower back condition warrants a 20 percent rating, but no higher, for the period prior to December 13, 2019. However, a rating in excess of 20 percent prior to December 13, 2019, or in excess of 40 percent thereafter, is not supported by the evidence of record and, therefore, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this determination, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. See 38 C.F.R. § 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 206-207 (1995). (continued on the next page) REASONS FOR REMAND Entitlement to a TDIU, for the period prior to September 1, 2017, to include on an extra-schedular basis, is remanded. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of multiple service-connected disabilities, provided one of the disabilities is rated at 40 percent or more and the others bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Further, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Initially, the Board notes that the Veteran has been granted a TDIU from September 1, 2017, and as such, the period from such date is not before the Board. For the period prior to September 1, 2017, the Veteran had a combined rating of 40 percent and, therefore, the Veteran does not meet the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nonetheless, TDIU may still be awarded on an extra-schedular basis. See 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, the Board must consider whether referral to the Director of Compensation Service for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran contends that his service-connected back and knee conditions render him unemployable. See November 2016 VA Form 21-8940. The evidence indicates that Veteran’s education includes two years of college, he has no specialized training, and his previous work experience is of a sales/supervisory nature. See id. Additionally, the Veteran has reported that his employment duties involved standing, walking, and remaining stationary. See December 2016 VA Form 27-0820. Further, in a September 2017 VA examination report, the examiner noted that, with respect to the Veteran’s lower back condition, activities involving trunk range of motion (ROM) and weight bearing cause lower back pain, which affects ambulation and activities requiring use of the back. See September 2017 VA Back Conditions DBQ. Based on the evidence above, the Board finds that Veteran’s ability to obtain and maintain substantially gainful employment may be impacted by his service-connected disabilities. As such, a remand is necessary for referral to the Director of the Compensation and Pension Service for consideration as to whether a TDIU is warranted on an extra-schedular basis. Accordingly, the matter is REMANDED for the following action: 1. Refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.