Citation Nr: 21014221 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-18 944 DATE: March 11, 2021 ORDER A rating in excess of 40 percent for degenerative disc disease of the lumbar spine (lumbar spine disability) is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance of another or at the housebound rate is denied. A total disability based on individual unemployability due to service-connected disability (TDIU) prior to September 30, 2015 is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. Service-connected disabilities did not render the Veteran so nearly helpless as to require the regular aid and attendance of another person, nor did they cause him to be housebound. 3. Prior to September 30, 2015, the Veteran did not meet the numeric requirements for a schedular TDIU and the evidence does not raise a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for thoracolumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for SMC based on the need for aid and attendance or at the housebound rate on an accrued benefits basis are not met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. 3. The criteria for a TDIU were not met on a schedular basis prior to September 30, 2015, and referral for extraschedular consideration was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from January 1957 to January 1977. The Veteran died in September 2018. The appellant is his surviving spouse, the substituted claimant in this appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). In January 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability. The appellant, via her representative, contends that the Veteran’s spine was so bad that he was “immobilized.” See Hearing Transcript (January 2021). She stated that, during the 2016 VA examination, the examiner could not get the Veteran onto the table, and the appellant and her son got him on the table to enable the doctor to perform the examination. Id. The Board concludes that the preponderance of the evidence is against a rating in excess of 40 percent for thoracolumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. The Veteran’s lumbar spine disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 pertaining to lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Formula for Rating intervertebral disc disease (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5237 provides that, for purposes of ratings under Diagnostic Code 5237, 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. Under the General Rating Criteria, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Criteria. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. In this case, the Board is unable to afford the appellant the benefit she seeks in this matter as the competent, credible evidence of record shows that the Veteran did not have ankylosis of the spine of the entire thoracolumbar spine or that he had IVDS required bed rest prescribed by a physician. Reports of VA examination dated in March 2016, September 2016, and February 2017 reflect that there was no ankylosis of the Veteran’s spine or that he had physician prescribed bedrest for his IVDS. First, the Board notes that the March 2016, the September 2016 and February 2017 VA examination reports are adequate for determining whether the Veteran’s lumbar spine disability more nearly reflected the criteria for a rating in excess of 40 percent. The Board is cognizant of the apparent inability for the examiners to provide range of motion findings as well as whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. However, the examinations indicated that the Veteran was wheelchair bound, and range of motion testing could not be performed due to the Veteran being unable to stand alone to conduct the testing. See C&P Exam (September 2016). The examiners, however, attempted to elicit information from the Veteran himself to provide the necessary findings, which too was limited as noted by the examiner by the Veteran’s inability to communicate well due to his non-service-connected dementia. Moreover, a September 2016 VA addendum opinion, noting the Veterans inability to communicate due to his dementia, found that the Veteran’s medical condition, mainly due to non-service-connected Parkinson’s disease, did not permit a proper examination. See C&P Exam (September 2016). Second, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019) (explaining why Johnston and Spencer allow for denial of a claim for a higher rating based on ankylosis without considering flare-ups); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Third, even were the Board to accept that a higher rating may be assigned based on the functional impairment equivalent of ankylosis, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s thoracolumbar spine disability because neither the lay nor the medical evidence reflects that the Veteran experienced symptoms, or flare-ups of symptoms, that would result in limitation of motion more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Indeed, both the medical and lay evidence of record shows that the Veteran’s back was not inflexible and, even though limited, there was range of motion in the forward flexion and extension. For instance, in March and September 2016, the Veteran was noted to be able to walk with assistance or a walker occasionally, giving no indication that his back was fixed in flexion or extension. See C&P Exam (March 2016 & September 2016). Also, a September 2015 letter from Concho Valley Home Health Care shows that the Veteran was able to bathe himself but required feeding assistance when his Parkinson’s disease became exacerbated. See Buddy/Lay Statement (September 2015). A January 2016 VA functional assessment during the Veteran’s treatment at Concho Valley Home Health Care for his progressing Parkinson’s disease showed that the Veteran needed assistance but was able to bathe himself, dress himself, use the toilet, and feed himself. See CAPRI (January 2016). He required complete assistance with moving from bed to chair. Id. A March 2016 VA spine examination reflects that Veteran reported needing assistance with walking and experiencing flare-ups with most activities. It shows that the Veteran was unable to stand and to sit for more than 30 minutes. Objectively, he had forward flexion to 30 degrees; extension to 5 degrees; bilateral flexion to 5 degrees; and bilateral rotation to 5 degrees. There was no ankylosis of the spine and no IVDS. An August 2016 private medical opinion from Dr. J. Mull, MD, notes severe degenerative disc disease throughout the lumbar region with resultant spinal stenosis, which progressed into a severe lower extremity weakness and inability to stand and walk. See Medical Treatment Record - Non-Government Facility (September 2016). However, there is no indication of ankylosis of physician prescribed bed rest for IVDS. A September 2016 VA examination report shows that much of what was blamed on the Veteran’s back condition was actually a consequence of his Parkinson’s disease, as it was not the back condition or radiculopathy that kept him from walking. The examiner was unable to conduct range of motion testing, because the Veteran could not stand alone. Moderate paralumbar area tenderness was noted. Functional limitations were noted to be caused by most any activity, resulting in more low back pain, and the examination was found to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. No IVDS was found, and the Veteran was noted to use a wheelchair constantly, a walker occasionally, and power wheelchair constantly for his Parkinson’s disease. A November 2016 medical note from Dr. Sander, Ph.D. indicates that the Veteran’s lower back affected the Veteran’s legs and resulted in him being unable to stand or sit without increased pain or a risk of falls. See Medical Treatment Record - Non-Government Facility (April 2018). A March 2017 VA examination report shows that the Veteran had a nursing home physical therapy and took Celebrex for pain. It was indicated that the Veteran was unable to stand independently to perform range of motion testing; that he had no back surgery; and that he reported intermittent symptoms and was asymptomatic on exam. Constant use of wheelchair was indicated. However, there was no ankylosis or indication of physician prescribed bed rest for IVDS. An August 2018 VA functional assessment showed that the Veteran was able to bathe himself even with assistance, was able to dress himself and may have needed help tying shoes. See CAPRI (June 2018). He was able to get on and off the toilet, arrange clothes and clean himself without help, and was able to move in and out of bed or chair unassisted even if with mechanical transferring aids. Id. Neither the lay nor medical evidence more nearly reflect the criteria for a rating in excess of 40 percent or that the Veteran had other separately ratable manifestations, such as neurological impairment. It is noted that the Veteran was granted service connection for radiculopathy for the lower extremities, and there is no indication of any other associated impairment. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may have believed and the appellant may believe that he met the criteria for a higher disability rating than assigned, the Veteran’s complaints along with the medical findings do not meet the schedular requirements for a higher rating. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 40 percent for lumbar spine disability. Accordingly, the claim is denied. There is no reasonable doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to SMC A&A or housebound status. The appellant contends that the Veteran’s disabilities warrant an award of SMC based on the need for regular aid and attendance of another person or due to being housebound. She stated that he could not dress himself, had to have mechanical lift to get out of bed, needs help feeding, required aid to bathe and was unable to do anything by himself. See NOD (July 2018). She also noted that the Veteran was determined by VA to be mentally incapacitated. Id. In an August 2018 statement, the Veteran’s representative stated that his lumbar spine disability mainly caused his disabling condition. See VA 21-4138 Statement In Support of Claim (August 2018). During her January 2021 hearing, the appellant testified that the Veteran required care 24 hours a day seven days a week due to his lumbar spine disability and Parkinson’s disease. See Hearing Transcript (January 2021). In support of her claim, the appellant submitted numerous buddy statements and private medical professionals’ statements. The Board concludes that the preponderance of the evidence is against the claim for SMC. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Factual need for aid and attendance is based on criteria set out at 38 C.F.R. § 3.352(a) although it is not required that all of the disabling conditions enumerated therein be found to exist to establish eligibility. In addition, a veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including a total rating based upon unemployability under 38 C.F.R. § 4.17 and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350 (i). A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). At the time of the Veteran’s death, service connection was established for lumbar spine disability (40%); bilateral lower extremity radiculopathy (40% - each extremity); and post-operative septorhinoplasty for traumatic nasal fracture (0%). The combined disability rating was 80 percent from September 30, 2015, and a 100 percent rating based on TDIU was assigned from September 30, 2014. The Veteran died in September 2018. In April 2018, VA received multiple lay statements and a private evaluation for Housebound Status or Permanent Need for Regular Aid and Attendance, which the RO found to be a claim for SMC based on the need for the regular aid and attendance of another person or at the housebound rate. It is uncontroverted that the Veteran required the regular aid and attendance of another person and that he was essentially housebound from the time VA received his claim until his death. However, both the lay and medical evidence show that this was also attributable to nonservice-connected conditions, including Parkinson’s Disease and dementia with their associated complications and debilitating effects. Private treatment records show that he was seen in July 2014 due to progressively worsening Parkinson’s disease and dementia. See Medical Treatment Record - Non-Government Facility (January 2016). A February 2015 statement of attending physician from Dr. D. March, MD, showed that the Veteran had advanced Parkinson’s disease, requiring him to use a wheelchair because he could not leave his home without assistance. See Medical Treatment Record - Non-Government Facility (June 2016). The Veteran’s treating physician, Dr. K. Hendley, provided an August 2015 statement that as a result of the progressive worsening of his Parkinson’s Disease, the Veteran was no longer able to care for himself, including inability to handle activities of daily living (ADLs). See Medical Treatment Record - Non-Government Facility (June 2016). A September 2015 private treatment letter from Concho Valley Home Health Care provides that since August 2013 the Veteran’s health declined due to Parkinson’s disease, necessitating assistance to the Veteran with activities of daily living. See Third Party Correspondence (January 2016). An October 2015 private treatment note from Dr. D. Marsh reports the Veteran coming for a follow-up for his Parkinson’s disease, including after spending three weeks at a nursing home after en episode where he fell and had decreased responsiveness and seemed confused. See Medical Treatment Record - Non-Government Facility (June 2016). His falls were reportedly decreasing, because he started using his wheelchair or walker at all times. It was noted that he continued to have difficulty with gait and significant back pain, limiting his mobility, and required assistance with ADLs. An August 2016 statement of Dr. Richeh, Shannon Clinic, indicated that the Veteran required assistance of two full-time caretakers in the areas of self-hygiene and ambulation as well as ADLS, stating that his mental and motor functions were declining. See Medical Treatment Record - Non-Government Facility (August 2016). In August 2016, Dr. Mull noted severe degenerative disc disease throughout the lumbar region with resultant spinal stenosis, which progressed into a severe lower extremity weakness and inability to stand and walk. See Medical Treatment Record - Non-Government Facility (September 2016). In September 2016, the Veteran experienced a syncopal episode, altered mental status and dehydration due to Parkinson’s disease, dementia, coronary artery disease and bilateral lower extremity edema. See Medical Treatment Record - Non-Government Facility (September 2016). VA treatment records and examinations show that the Veteran needed assistance with walking, that his lumbar spine disability impacted all of his life activities as he experienced pain with activities of daily living. See C&P Exam (March 2016). In September 2016, his bilateral lower extremity radiculopathy was not found to result in functioning so diminished that amputation with prosthesis would equally serve the Veteran. See C&P Exam (September 2016). A September 2016 VA addendum clarified that the Veteran’s Parkinson’s disease kept him from walking. Id. A March 2017 VA examination noted that he was wheelchair bound. See C&P Exam (March 2017). In February 2017, VA treatment records show Parkinson’s disease with dementia, and significantly impaired functional mobility and endurance resulting in the Veteran being bed or wheelchair bound. See CAPRI (September 2017). In April 2017, the Veteran was noted to be in skilled care for 3.5 weeks; he was admitted to Shannon Medical Center in March 2017 due to exacerbation of weakness, near fall at home; he was treated for respiratory infection and dehydration. See CAPRI (April 2017). His wife reported near functional status at that time. Id. A need for non-skilled home health care was re-started. Id. In August 2018, the Veteran was noted to be able to bathe, dress himself include getting clothes from closets and drawer, but may have needed help tying shoes; use the toilet; move in and out of bed or chair unassisted; exercise complete self-control over urination and defecation; and get food from plate into mouth without help. See CAPRI (June 2018). He was unable to shop, use telephone, prepare food, maintain housekeeping, do laundry, be responsible for his medication and able to handle finance. Id. In September 2018, the Veteran was placed into a nursing facility and expired a few days later, on September 7, 2018. See CAPRI (September 2018). The Board has considered VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) dated on March 23, 2018 from Dr. P. Chang. See VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) (April 2018). This evaluation indicates that the Veteran was unable to dress himself; was unable to ambulate; experienced mild rigidity in upper and lower extremities; experienced incontinence; was homebound requiring a wheelchair for locomotion; was unable to feed himself or prepare meals; needed assistance bathing and attending to other hygiene needs; needed nursing home care and medication management; and was bedridden and malnourished. Dr. Chang noted diagnoses to include generalized muscle weakness and rigidity as well as primary orthopedic issues, and attributed the Veteran’s inability to feed himself, prepare meals and inability to bathe or maintain hygiene to inability to lift arms. There was no mention of any need based on the Veteran’s service-connected disabilities. While the evidence detailed above is competent and credible, it is not probative of need for care based on service-connected disabilities or entitlement to housebound benefits because the Veteran’s need for either stems from Parkinson’s disease and dementia, which are not service-connected disorders. The Board has further considered the lay evidence. The appellant reported that the Veteran could not dress himself, had to have mechanical lift to get out of bed, needed help feeding, required aid to bathe and was unable to do anything by himself. See Hearing Transcript (January 2021). This evidence is competent and credible, and the Board is sympathetic to the appellant’s difficult circumstances. However, this evidence is not probative of need for care based on service-connected disabilities or entitlement to housebound benefits because again the Veteran’s Parkinson’s disease and dementia are not service-connected disorders. Here, neither the lay nor the medical evidence supports entitlement to the benefits sought because it fails to demonstrate that, due to service-connected disabilities, the Veteran (1) was blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) was a patient in a nursing home because of mental or physical incapacity; or (3) had factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a). See 38 C.F.R. § 3.351(c). Furthermore, the Veteran was not bedridden due to service-connected disability. 38 C.F.R. § 3.352 (a). Lastly, the Veteran did not have a service-connected disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and either additional service-connected disability independently ratable at 60 percent or more, or permanently housebound due to service-connected disability. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). No medical professional has provided any opinion indicating that the Veteran’s service-connected disabilities required him to need regular aid and attendance or rendered him permanently bedridden. There are no treatment records showing that the Veteran’s service-connected disabilities caused him to be permanently bedridden or so helpless as to be in need of regular aid and attendance. The record shows that the Veteran has Parkinson’s disease, coronary artery disease, chronic kidney disease, hypertension, hyperlipidemia and dementia. The evidence of record clearly establishes that Parkinson’s disease and its associated disabilities, including dementia, has created his need for the regular aid and attendance of another person. However, this is not a service-connected disability. In sum, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to a TDIU prior to September 30, 2015. An April 2020 rating decision granted the appellant’s claim of TDIU, effective September 20, 2015, the date he met the numeric requirement for schedular criteria under 38 C.F.R. § 4.16(a). As this award is not a complete grant of the benefit sought, the claim of entitlement to TDIU prior to September 20, 2015, remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board concludes that, prior to September 20, 2015, the Veteran did not meet the numeric requirements for a schedular TDIU and that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities to warrant referral for extraschedular consideration of TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Nonetheless, VA’s policy is to grant a TDIU in all cases where service-connected disabilities preclude substantially gainful employment, regardless of the percentage ratings. See 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence indicates that the Veteran’s service-connected disabilities, alone, preclude substantially gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance, and must, instead, remand the claim for referral to the Director of Compensation Service for consideration of the veteran’s entitlement to an extra-schedular rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” For the following reasons, that standard has not been met in this case. Here, prior to September 30, 2015, the Veteran was in receipt of service connection for the following disabilities: lumbar spine disability (10%) and post-operative septorhinoplasty for traumatic nasal fracture (0%). His combined rating was 10 percent prior to September 30, 2015. Accordingly, the numeric requirements for TDIU on a schedular basis were not met prior to September 30, 2015. See 38 C.F.R. § 4.16(a). The Board has considered whether referral to the VA Director of Compensation for consideration of extraschedular TDIU is warranted. However, as explained below, there is “sufficient evidence to substantiate a reasonable possibility” that the Veteran was unemployable by reason of his service-connected disabilities prior to September 30, 2015. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The VA examination reports for his lumbar spine disability and post-operative septorhinoplasty for traumatic nasal fracture within the relevant period do not indicate that the Veteran’s disabilities impacted his ability to work. Follow-up examinations for the he Veteran’s post-operative septorhinoplasty for traumatic nasal fracture showed good results. See Medical Treatment Record – Government Facility (March 1977). An October 2010 VA Spine examination indicated that the Veteran voluntarily retired and did freelance for several years. See CAPRI (January 2012). The examination indicated that the Veteran retired in 1993 because he was eligible by age or duration of work. Id. A November 2012 VA annual check indicated that the Veteran was “doing pretty good” and his spine had normal curvature. See CAPRI (December 2013). A November 2013 VA social work note indicates that the Veteran’s wife requested that the Veteran be registered for eventual long-term care as he was diagnosed with Parkinson’s disease. See CAPRI (December 2013). May 2014, September 2014 and February 2015 private treatment records from Shannon Clinic show the Veteran experiencing altered behavior, hallucinations, falls and renal insufficiency due to his Parkinson’s disease and was admitted in May 2014. See Medical Treatment Record – Government Facility (September 2015). Here, the evidence shows that the Veteran’s physical and mental state was severely and progressively affected by his non-service-connected Parkinson’s disease and resulting complications, not his service-connected lumbar spine disability and/or post-operative septorhinoplasty for traumatic nasal fracture. While the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner,” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), in this case the opinions and findings of the VA examiners and VA providers are consistent with the evidence of record. The Veteran’s service-connected disabilities did not cause impairment such that there is a reasonable possibility that he was unemployable by reason of these disabilities. The disabilities did not cause impaired locomotion or impaired use of either his upper or lower extremities or any other symptom that would raise a reasonable possibility that his service-connected disabilities preclude the physical and/or mental acts required for employment. In addition, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib, 733 F.3d at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). According to his April 2016 VA Form 21-8940, the Veteran claimed he became unemployable seven years earlier due to “disability.” See VA Form 21-8940 (April 2016). He listed these disabilities to include Parkinson’s disease and degenerative disk disease. Id. As stated above, other records indicate that the Veteran retired in 1993 from doing “telephone works” and did freelance work for several years. See CAPRI (January 2012). Multiple buddy statements show that the Veteran was unable to work due to his worsening symptoms attributed to Parkinson’s disease. See e.g. Buddy/Lay Statement (September 2015). While the evidence reflects the Veteran’s inability to work, the evidence does not raise a reasonable possibility that he was unable to perform either physical or mental acts required by employment due to either his lumbar spine disability or post-operative septorhinoplasty for traumatic nasal fracture, or the aggregate effect of these conditions, prior to September 30, 2015. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, as explained above. Therefore, referral of the claim for a TDIU is not warranted. Accordingly, the claim for TDIU prior to September 30, 2015 is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.