Citation Nr: 21025380 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 08-12 665 DATE: April 28, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis from May 3, 2006, to May 17, 2007, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 C.F.R. § 1318 is granted. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation that was consistent with his education and occupational experience from May 3, 2006, to May 17, 2007. 2. The Veteran was entitled to receive a TDIU for a period of 10 or more years immediately preceding his death. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria of a TDIU on an extraschedular basis from May 3, 2006, to May 17, 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.10, 4.16, 4.18, 4.25 (2020). 2. The criteria for DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1954 to July 1956. The Veteran died in August 2016, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2007 and February 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Board granted entitlement to a TDIU effective from April 1, 2009. The Board also remanded the issue of entitlement to a TDIU on an extraschedular basis prior to April 1, 2009, for referral to the Director of VA’s Compensation and Pension Service. Unfortunately, the Veteran died in August 2016. The Agency of Original Jurisdiction (AOJ) has recognized the appellant as a valid substitute claimant for the TDIU issue on appeal. See April 2017 and January 2018 correspondence. In January 2020, the Board granted entitlement to a TDIU on an extraschedular basis effective from May 18, 2007. The Board also denied entitlement to service connection for the cause of the Veteran’s death, entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318, and entitlement to a TDIU on an extraschedular basis prior to May 18, 2007. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties to vacate and remand the portion of the Board’s January 2020 decision that denied entitlement to a TDIU on an extraschedular basis prior to May 18, 2007, and entitlement to DIC under 38 U.S.C. § 1318. The parties also noted that any challenge to the portion of the Board’s decision denying entitlement to service connection for the cause of the Veteran’s death should be deemed abandoned. The Board notes that, in February 2019, the Board remanded the issue of entitlement to special monthly compensation (SMC) for loss of use of the right lower extremity. In April 2020, the AOJ issued a Supplemental Statement of the Case (SSOC) pertaining to that claim. In May 2020, the appellant opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 20-0996, Decision Review Request: Higher-Level Review. Therefore, the issue of entitlement to SMC for loss of use of the right lower extremity is no longer part of the appellant’s Legacy appeal. In December 2020, the appellant’s representative requested a full 90 days through February 19, 2021, to submit arguments and additional evidence in support of the pending appeal. The 90-day period has expired. 1. Entitlement to a TDIU on an extraschedular basis prior to May 18, 2007 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or 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. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The appellant’s representative has contended that a TDIU is warranted on an extraschedular basis prior to May 18, 2007. See February 2019 and November 2019 correspondence. Prior to May 18, 2007, the Veteran was service connected for a lumbosacral strain with root compression due to spondylolisthesis rated as 20 percent disabling from August 1, 1956, and right lower extremity polyneuropathy rated as 20 percent disabling from July 13, 2006. The Veteran’s combined disability rating was 20 percent effective from August 1, 1956, and 40 percent effective from July 13, 2006. Therefore, the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) for the period on appeal. In November 2018, the Veteran’s claim was forwarded to the Director of VA’s Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In a January 2019 determination, the Director determined that a TDIU on an extraschedular basis prior to April 1, 2011, was not warranted. Therefore, the Board may address the issue on the merits. As discussed below, the issue of entitlement to TDIU was raised by the record as part and parcel of the Veteran’s claims for increased ratings for his service-connected lumbar spine disability and right lower extremity sensory polyneuropathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also, Harper v. Wilkie, 30 Vet. App. 356 (2018). Historically, in an October 1956 rating decision, the RO granted service connection for a lumbosacral strain with root compression due to spondylolisthesis and assigned a 20 percent evaluation. On February 21, 2007, the Veteran filed a claim for an increased evaluation for his service-connected lumbar spine disability. At that time, the Veteran also reported having numbness in his right leg. In a July 2007 rating decision, the RO continued a 20 percent evaluation for the service-connected lumbosacral strain with root compression due to spondylolisthesis. The RO also granted service connection for hypoesthesia of the right leg, S1 nerve root irritation, as secondary to the service-connected lumbar spine disability. In so doing, the RO assigned a 10 percent evaluation effective from July 13, 2006, which was the date of a VA EMG study. In June 2011, the Board determined that the disability ratings assigned for the Veteran’s right and left lower extremity polyneuropathy were part of his appeal for an increased rating for his service-connected lumbar spine disability. In so finding, the Board stated that although the Veteran did not mention neurologic symptoms in either leg in his September 2007 Notice of Disagreement, he described problems with both legs due to his back disability in a July 2009 correspondence and during an April 2011 Board hearing. The Board also noted that the ratings assigned for the sensory polyneuropathy were assigned by rating decisions that were on appeal and were based on manifestations that were secondary to the Veteran’s service-connected lumbar spine disability. The Board remanded the appeals for further development. In April 2012, the Board denied increased evaluations for the service-connected lumbosacral strain with root compression due to spondylolisthesis. The Board increased the evaluation assigned for the service-connected right lower extremity polyneuropathy from 10 percent to 20 percent for the period from July 13, 2006, to August 17, 2011, and denied an evaluation in excess of 20 percent for the entire appeal period. The Board also granted a 10 percent evaluation for left lower extremity radiculopathy for the period from August 15, 2007, to August 16, 2011, and denied an evaluation in excess of 10 percent for the entire appeal period. The Veteran appealed the Board’s April 2012 decision to the Court. In an August 2013 Memorandum Decision, the Court vacated and remanded the Board’s decision to the extent that it denied entitlement to an evaluation in excess of 20 percent for the right lower extremity polyneuropathy. In May 2014, the Board denied an evaluation in excess of 20 percent for right lower extremity radiculopathy. The Board also determined that the issue of entitlement to a TDIU had been raised as part and parcel of the Veteran’s claim for an increased evaluation for his service-connected right lower extremity polyneuropathy and remanded the matter for further development. The Veteran appealed the Board’s May 2014 decision to the Court. In a June 2015 Order, the Court granted a Joint Motion for partial remand and vacated the Board’s decision to the extent that it denied an evaluation in excess of 20 percent for the right lower extremity disability. In November 2015, the Board, in relevant part, denied an evaluation in excess of 20 percent for right lower extremity sensory neuropathy for the period from February 12, 2006, to March 31, 2011, and granted a 40 percent evaluation from April 1, 2011. In July 2016, the Board granted entitlement to a TDIU effective from April 1, 2009. The Board also remanded the issue of entitlement to a TDIU on an extraschedular basis prior to April 1, 2009, for referral to the Director of VA’s Compensation and Pension Service. The appellant appealed the Board’s November 2015 decision to the Court. In the July 2017 memorandum decision, the Court noted that the appellant did not appeal the portion of the Board’s decision denying a disability rating in excess of 20 percent for right lower extremity polyneuropathy from February 13, 2006, to March 31, 2011, and in excess of 40 percent from April 1, 2011. Therefore, the appellant abandoned the issue and the appeal was dismissed. In January 2020, the Board granted entitlement to a TDIU on an extraschedular basis effective from May 18, 2007. The Board also denied entitlement to a TDIU on an extraschedular basis prior to May 18, 2007. The Veteran appealed the Board’s decision to Court. In a November 2020 Order, the Court, in relevant part, granted a Joint Motion filed by the parties to vacate and remand the portion of the Board’s January 2020 decision that denied entitlement to a TDIU on an extraschedular basis prior to May 18, 2007. The record reflects that the Veteran was a college graduate with a bachelor’s degree in business administration. See March 2014 VA Form 21-8940. He also pursued a master’s degree in mathematics. Id. The Veteran worked as a manager in the communications industry for the majority of his career. See, e.g., June 2015 affidavit; November 2019 private vocational evaluation. He also had experience performing computer graphing for mapping and organizing utilities. See id. During a May 2007 VA examination, the Veteran reported that he retired from his employment at a telephone company in 1977. During an April 2009 VA examination, the Veteran reported that he retired in 1989. Similarly, during a March 2014 private medical evaluation, the Veteran reported that he retired from his employment at a telephone company in 1989. However, the Veteran also reported that he was self-employed at his own company working with underground utilities until 2005. In his March 2014 application for TDIU, the Veteran stated that his disabilities affected his full-time employment in approximately January 1970, and that he became too disabled to work in approximately July 1996. The Veteran also reported that he worked on a part-time basis performing computer mapping for a utility locating and mapping company from approximately 1992 to 1996. The Board acknowledges that the Veteran provided some inconsistent statements regarding his employment history. However, the evidence of record does not suggest that the Veteran worked after he retired from his self-employment, which was reportedly in 2005. Moreover, marginal employment shall not be considered substantially gainful employment. For purposes of entitlement to a TDIU, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16. Marginal employment may also be held to exist, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. In this case, the appellant’s representative submitted a social security earnings statement that indicates the Veteran’s annual earnings were below the Federal poverty threshold from 1999 to 2002 and that he did not have any reported earnings from 2003 to 2012. See October 2014 correspondence; see also Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited April 14, 2021). Therefore, the Board finds that the Veteran did not engage in substantially gainful employment throughout the appeal period. The remaining question is whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In a May 2006 VA medical record, the Veteran reported that he had not had any change in his back pain or medication until recently when his pain and numbness in his right thigh became more pronounced. A June 2006 VA orthotics record noted that the Veteran was prescribed a back brace for his lumbar spine. An August 2006 VA neurology consultation noted that an EMG findings showed that right S1 nerve root irritation could not be ruled out, but there was no evidence of peripheral neuropathy. A January 2007 VA medical record noted that magnetic resonance imaging (MRI) findings showed bulging discs and foraminal encroachment. It was also noted that the Veteran was offered neurosurgery, physical therapy, or narcotic treatment. In a February 2007 claim, the Veteran reported having severely limited range of motion when bending side to side and forward or backwards due to his service-connected lumbar spine disability. He reported that two discs in his spine were not properly aligned and that he had a growth on his spine. He also reported having numbness in his right leg at times. In a May 2007 VA examination, the examiner stated that, for the last 5 years, the Veteran did not complain “too much” until recently. The Veteran reported that he was able to sit for 45 minutes; stand for approximately one hour before needing to sit; walk about 30 yards before needing to slow down and stop; lift 5 pounds frequently and 10 pounds occasionally; very slowly maneuver stairs while holding onto a railing; and drive for a maximum of 1 hour. The Veteran also reported that he was unable to push or pull a vacuum. The examiner indicated that the Veteran could walk on his heels and the balls of his feet, and that he had no bladder or bowel control problems. The Veteran also endorsed having symptoms of pain radiating down his right leg to his toes. The Veteran reported having constant back pain with flare-ups at least every 4 days that lasted hours. He was also prescribed a corset to wear at night. The examiner stated that the Veteran had not been incapacitated during the previous year and that his flare-ups had not last more than 48 hours. The examiner also stated that the Veteran limited himself to limited himself to “just sitting.” She estimated that the Veteran spent 6 hours out of a 9 hour day sitting and a total of 1 hour walking with the rest of his time spent lying on his back and resting. A physical examination of the Veteran revealed increased muscle spasm, tenderness, and painful motion associated with movement of the lumbar spine. Range of motion testing revealed forward flexion to 90 degrees with pain throughout; and extension, rotation, and lateral flexion to 30 degrees with pain throughout. The examiner estimated the Veteran would have an additional 10 degree of loss for forward flexion and extension due to lack of endurance and weakness. However, repetitive range of motion testing did not alter the Veteran’s range of motion. The examiner also stated that no further loss of range of motion was recommended for the Veteran’s back due to painful motion, fatigue, lack of endurance, flare-ups, or weakness. The Veteran’s deep tendon reflexes were equal and normal except for an absent ankle reflex on the right side suggesting S1 irritation. There was a decrease in sensation to pain, touch, and vibration in the S1 dermatome of the right leg and definite hyposthesia. There was no evidence of foot drop or muscle wasting. The examiner noted that a December 2006 MRI report showed anterior listhesis of L5 on S4, severe disc loss at L5-S1, very severe foraminal narrowing at L5-S1, and some evidence of disc protrusion with mild facet occlusion on the right side at L4 and L5. She also stated that a July 13, 2006, VA EMG report suggested that the Veteran had definite S1 irritation on the right sciatic distribution. The examiner diagnosed the Veteran with chronic lumbar degenerative disc disease with muscle spasms associated with a positive leg raising test and hypothesia involving the S1 dermatome of the right leg. She stated that there was no obvious muscle weakness, but the Veteran’s pain would have a definite effect on endurance. The examiner also stated that MRI findings showed definite evidence of spondylolisthesis of the lumbar spine, which contributed to numbness. The examiner opined that the Veteran’s back disability would definitely affect his original occupation, but he was retired and his lifestyle had slowed down completely. She also noted that the Veteran showed obvious discomfort due to his back when sitting, lying down, or sitting up. In a May 22, 2007, VA medical record, the Veteran reported that he was unable to stay in one position for more than an hour. The Veteran stated his pain or medication had not changed until recently when pain and numbness in his thigh became more pronounced. However, he also stated that his pain worsened in the last 5 years and that he was unable to walk on his heels, squat, or touch his toes. The Veteran also reported wearing a coreset at night to protect himself from turning the wrong way. In an August 15, 2007, VA internal medicine record, the Veteran reported having pain with ambulation and decreased range of motion when bending down to tie his shoes and rotating his trunk left or right. His pain was not relieved by his prescription pain medication and back brace. The Veteran also reported having chronic right leg numbness, as well as left leg numbness over the past years. He also endorsed having bilateral hip pain that radiated down the lateral aspect of his thighs to his knees. A VA physician noted that range of motion testing revealed forward flexion to 20 inches finger-to-floor distance; right and left flexion to 10 degrees; extension to 10 degrees; and right and lateral rotation to 45 degrees. In an August 15, 2007, VA neurosurgery record, the Veteran reported having right leg numbness when standing still or sitting for too long since his initial injury. He also reported having significant back pain when standing that was relieved by lying flat. The Veteran stated that his back brace no longer helped relieve his symptoms. A VA physician noted that the Veteran was hesitant about undergoing surgery and that he was advised that his age and comorbidities may eventually preclude the possibility of surgery. The Veteran was also advised to wear his back brace daily. In July 2008 private medical statement, Dr. Z.I. (initials used to protect privacy) stated that the Veteran complained of severe intermittent low back pain, and occasional right leg pain since is in-service injury. The Veteran reported that his back pain worsened in severity over the last several years, and his right leg pain worsened significantly over the past several months. Dr. Z.I. stated that a physical examination revealed that the Veteran was able to walk with a reciprocal gait and on his toes. He diagnosed the Veteran with longstanding isthmic spondylolisthesis at L5-S1, degenerative L5-S1 disc, and secondary back and right lower extremity pain. In July 2009, the Veteran reported that his symptoms continued to worsen in severity. He stated that he was unable to move for periods lasting as long as four hours on a daily basis. He was forced to lay immobile on his back until his muscle spasms subsided, then he was able to move but never strenuously. In an April 2009 VA examination, the examiner opined that the Veteran would not be able to function in his usual occupation simply because of the prolonged standing and walking, which were inherent in any occupation for which he was otherwise qualified. The Veteran reported that he was able to walk a quarter of a block, but he had to stop or walk 5 minutes or less. He was able to sit without limitation provided that he was able to change body position frequently. He was unable to stand more than 5 minutes before having to sit. He used a brace periodically. The Veteran also reported having daily flare-ups that lasted minutes to hours. He treated his flare-ups with prescription pain medication, which provided some relief. There were no incapacitating episodes to report over the last year. A December 2010 VA MRI report noted that findings of spondylolisthesis at L5-S1 with bilateral pars defects were seen on a previous examination. There was a slight progression of the amount of displacement and severe foraminal narrowing at that level. During an April 2011 Board hearing, the Veteran testified that his lumbar spine pain increased in severity roughly 4 to 5 years earlier. However, he also stated that his symptoms increased in severity in approximately 2004 to 2005. The Veteran stated that he required constant medication for pain since that time. The Veteran reported having difficulty standing, sitting, and walking. He described his pain as a 6 or 7 on a scale from 1 to 10. His medication reduced his pain to a 4 or 5 out of 10. The Veteran testified that his gait became more abnormal in the last two years in that he “wobbled,” he could not walk a straight line, and he relied on a walker to prevent falling. The Veteran testified that prior to approximately 5 years ago he was able to walk 2 miles per day. However, he was only able to walk a block or a little more without needing to stop and rest. The Veteran reported that he was able to stand in the mornings for “roughly 15 or 20 minutes” with continuous movement before needing to sit down. He was only able to sleep on his back and constantly turned during the night. He was able to drive, but only for a “very little” length of time. The Veteran stated that numbness affected his stability and that VA medical providers recommended he obtain a walking device to prevent falling. In a March 2014 application for TDIU, the Veteran reported that all of his service-connected disabilities prevented him from securing or following substantially gainful employment. The Veteran reported that he relied on a walker and had difficulty climbing stairs. He was also unable to sit or stand for more than 15 minutes without his back “seizing,” numbness in right leg, and tingling in his left leg. He stated that his back and leg pain was so severe on some days that he was unable to get out of bed. During a March 2014 private medical evaluation, the Veteran reported that he worked for a telephone company for a number of years. His job was not physically demanding because he was a project manager. However, in 1989, he was forced to retire because he was unable to keep up with the demands of his job due to his lumbar spine and lower extremity symptoms. After he retired, the Veteran started his own company working with underground utilities. The job provided the Veteran flexibility to decide when to sit, stand, or walk. However, in 2005, the Veteran was forced to retired due to increasing symptoms associated with his lumbar spine and lower extremities. Dr. D.M., an orthopedic surgeon, noted that the Veteran was quite emphatic and that he would have continued working if it were not for his back and lower extremity problems. The Veteran further reported that his lumbar spine and lower extremity disabilities continued to become more symptomatic over the past 5 to 7 years. He experienced constant low back pain that worsened in severity when standing or sitting for more than 5 minutes. He also needed to “get up and move about” when sitting. The Veteran treated his back and lower extremity symptoms with Gabapentin and Oxycodone. Dr. D.M. opined that, from an orthopedic standpoint, it was at least as likely as not that the Veteran was totally precluded from all types of substantially gainful employment due to his service-connected lumbar spine disability and bilateral lower extremity radiculopathy since 2005. He further opined that it was at least as likely as not that the Veteran’s forced retirement in 2005 was due entirely to his service-connected lumbar spine or lower extremity symptoms. In so finding, Dr. D.M. stated that the Veteran owned his own company, which was an optimal job position since he could dictate when he wanted to sit, stand, or walk. He stated that the most physically demanding aspect of the Veteran’s job was simply driving and walking to various job sites. However, the combination of the Veteran’s lumbar pathology and associated lower extremity symptoms simply prevented him from consistently being able to function even in a sedentary position. In support of his opinion, Dr. D.M. noted that an August 2006 medical record indicated that an abnormal EMG had not ruled out right S1 nerve root irritation and that there was no evidence of peripheral neuropathy. He discussed findings from a December 2006 MRI report and a May 2007 VA examination report. Dr. D.M. also noted that that imaging findings showed that the Veteran’s spondylolisthesis progressed from 11 millimeters in December 2006 to 15 millimeters in December 2010. In a June 2015 affidavit, the Veteran reported that his previous occupations required him to spend the majority of his day sitting, which he was unable to do physically. He stated that his service-connected disabilities caused great pain in his legs and back from remaining seated for extended periods of time. Moreover, the cycle of constantly standing to relive his pain eventually became a performance issue due to his inability to carry out his work duties at a quality level. The Veteran further stated that his previous occupations required him to work “out in the field” and within the general public. However, his service-connected impairments made these physical requirements impossible due to the fact that he could not drive on his own for more than roughly 20 minutes due to pain in his legs and back from prolonged sitting. The Veteran reported that he began to experience ambulatory instability approximately 26 years earlier and that started using a walker approximately 15 years earlier. In a November 2019 private vocational opinion, a vocational evaluator opined that it was at least as likely as not that the Veteran’s service-connected lumbosacral strain with root compression due to spondylolisthesis and sensory polyneuropathy of the right lower extremity precluded his ability to secure and follow substantially gainful employment from at least July 2006. The evaluator further opined that the Veteran would have been unable to satisfy the physical requirements of even sedentary employment due to his service-connected lumbosacral strain with root compression due to spondylolisthesis since at least July 2006. In rendering her opinion, the evaluator stated that the Veteran’s occupational history was consistent with the occupational title of a General Manager. She stated that the occupation required frequent sitting; occasional and frequent standing, fingering, and handling; occasional reaching and walking; no or occasional bending, stooping, and twisting; and no kneeling, crouching/squatting, crawling, climbing, or balancing. In addition, the evaluator stated that the Veteran’s occupational history was consistent with a geodetic computator, which would require frequent to constant sitting; frequent reaching, handling, and fingering; occasional walking and standing; no or occasional bending, stooping, twisting, or crouching; and no kneeling, crawling, balancing, or climbing. The evaluator opined that, given the Veteran’s inability to sit, stand, or walk on a prolonged, continued, and consistent basis, it was at least as likely as not that he would have been precluded from performing the physical demands of work. The evaluator explained that occupations with even a limited physical demand level require individuals to sit from 6 to 8 hours per day with allotted standard work breaks and may require up to occasional standing and walking. However, due to his service-connected lumbosacral strain and right lower extremity polyneuropathy, the Veteran was unable to satisfy the physical requirements of standing and walking from at least July 2006. The evaluator further opined that the Veteran was more likely than not unable to sustain adequate pace, productivity, or reliability, as required in all employment, since at least July 2006 due to his service-connected lumbar spine and right lower extremity disabilities. In so finding, evaluator stated that, in her vocational opinion, employees are permitted to be off-task no more than 10 percent of the work day, and are not permitted to take unscheduled breaks away from the work station. The evaluator stated that the Veteran’s lay statements and documentation in the file showed that he was not able to sit, stand, or walk for any prolonged period of time without needing to change position. In particular, she noted that a May 2007 VA examination report indicated that the Veteran had to stand every 45 minutes in order to alleviate his back pain. Therefore, she opined that the frequency of the Veteran’s unscheduled work breaks to change position throughout the day would not be tolerated in competitive employment, as it would lead to a significant amount of time off-task. The evaluator further opined that the Veteran’s pain from his service-connected back and lower extremity conditions, as well as his need to change positions, impacted his concentration and focus. She stated that the Veteran’s inability to meet the quality demand requirements of any occupation would lead to a need to correct errors, resulting in lost time and not completing tasks in a timely manner and within competitive standards. Lastly, the evaluator indicated that, while the Veteran possessed skills that would transfer to occupations with limited physical demands, he would have been unable to apply his skills due to significant limitations resulting from his service-connected conditions. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that entitlement to TDIU on an extraschedular basis prior to May 18, 2007, is warranted. The evidence shows that the Veteran’s lumbosacral strain with root compression and right lower extremity symptoms caused significant impairment in his ability to perform physical activities, such as walking, standing, and prolonged sitting during the period on appeal. His lumbar spine disability also required him to frequently alternate between sitting and standing, which would impair his ability to perform most occupations. In the November 2020 Joint Motion, the parties agreed that a remand was warranted for the Board to address a May 2006 VA medical record and a February 2007 statement. The parties also agreed that the Board erred when it discounted two private opinions from March 2014 and November 2019 on the basis that the two opinions were prepared by the “same vocational consultant.” The Board notes that the March 2014 private medical opinion was provided by an orthopedic surgeon and the November 2019 private opinion was provided by a different vocational consultant. On review, the Board finds the November 2019 private vocational opinion highly probative, as it was based on a review of relevant evidence, an interview with the appellant, and supported by rationale. The November 2019 opinion is also consistent with the lay and medical evidence of record. In the May 2007 VA examination report, the examiner opined that the Veteran’s back disability would definitely affect his original occupation. Although the examiner stated that the Veteran spent 6 hours out of a 9 hour day sitting, she also noted that the Veteran reported that he was only able to sit for 45 minutes at a time. The examiner also observed that the Veteran displayed obvious discomfort due to his back when sitting on a couch, lying down, or sitting up. Moreover, the examiner stated that the Veteran’s pain from his chronic lumbar degenerative disc disease with muscle spasms and hypothesia involving the S1 dermatome of the right leg would have impair his endurance. In addition, the Veteran reported having functional impairment, including difficulty standing and sitting for prolonged periods due to his lumbar spine and right lower extremity symptoms. See, e.g., May 2007 VA medical record (Veteran reported that he was unable to stay in one position for more than an hour); May 2007 VA examination report (Veteran reported that he was only able to sit for 45 minutes at a time and stand for approximately one hour); and August 2007 VA medical record (Veteran reported having right leg numbness when standing still or sitting for too long since his initial injury). As discussed above, the issue of entitlement to a TDIU was raised as part and parcel of the Veteran’s claim for an increased rating for his service-connected right lower extremity polyneuropathy and lumbosacral strain with root compression due to spondylolisthesis, which stemmed from a February 21, 2007, claim for an increased evaluation for the service-connected lumbar spine disability. The evidence is at least evenly balanced as to whether it is factually ascertainable that there was increase in the severity of the Veteran’s service-connected lumbosacral strain with root compression that rendered him unemployable within the year prior to his February 21, 2007, claim. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In an October 1956 rating decision, the RO granted service connection for a lumbosacral strain with “root compression” due to spondylolisthesis and assigned a 20 percent evaluation. At that time, a September 1956 VA examination report noted a diagnosis of chronic moderate root compression syndrome involving L5 and S1 on the right, secondary to orthopedic condition and presently manifested by absent right Achilles reflex and sensory disturbances in the right lower extremity. The Board also notes that the rating criteria for the spine did not allow separate ratings for neurological manifestations until September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In a May 3, 2006, VA medical record, the Veteran reported that his back pain or medication had not changed until recently when his pain and numbness in his right lower extremity became more pronounced. An August 2006 VA consultation noted that a July 13, 2006, EMG showed that right S1 nerve root irritation could not be ruled out. In his February 2007 correspondence, the Veteran reported having severely limited range of motion when bending side to side and forward or backwards due to his service-connected lumbar spine disability. He also reported having numbness in his right leg at times. In a May 2007 VA examination report, the examiner opined that the Veteran’s spine disorder caused functional impairment and would impact his ability to perform his prior occupation. In so finding, the examiner stated that the July 13, 2006, EMG findings suggested that the Veteran had definite S1 irritation of the right sciatic distribution. Notably, the Veteran’s VA medical records reflect that the EMG was ordered due to symptoms that the Veteran reported in May 2006. The May 2007 examiner diagnosed the Veteran with chronic lumbar degenerative disc disease with muscle spasms associated with a positive leg raising test and hypothesia involving the S1 dermatome of the right leg. She opined that the Veteran’s pain would have a definite effect on his endurance. The examiner also stated that a December 2006 MRI findings showed definite evidence of spondylolisthesis of the lumbar spine, which contributed to his numbness. In addition, the November 2019 private vocational evaluator opined that the Veteran would have been unable to satisfy the physical requirements of employment due to his service-connected lumbosacral strain with root compression due to spondylolisthesis since at least July 2006. The Board does acknowledge that a March 2014 private medical opinion indicated that the Veteran was precluded from all types of substantially gainful employment due to his service-connected lumbar spine disability and bilateral lower extremity radiculopathy since 2005, which is over a year prior to the Veteran’s claim. In support of his opinion, Dr. D.M. discussed medical evidence pertaining to the Veteran’s lumbosacral spine with root compression, including August 2006 VA EMG report, a December 2006 VA MRI report, and a May 2007 VA examination. As discussed above, these records provided relevant findings regarding the Veteran’s lumbar spine with right lower extremity symptoms. The medical and lay evidence of record supports that the Veteran’s lumbosacral strain with root compression and his right lower extremity symptoms that were previously considered as part of the rating for the lumbar spine disability resulted in increased occupational impairment within the year prior to his February 2007 claim. However, the Veteran was granted service connection for left lower extremity sensory polyneuropathy effective from August 15, 2007. Moreover, although medical examiners are responsible for providing a full description of the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board also acknowledges that, in January 2019, the Director of Compensation Service determined that entitlement to TDIU was not shown prior to April 1, 2011, due exclusively to the Veteran’s service-connected lumbar spine and lower extremity neuropathy. In so finding, she stated that the evidence showed that the Veteran’s service-connected conditions made occupational activity difficult but not impossible. However, the Board is not bound by January 2019 determination and must conduct a de novo review of the claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted on an extraschedular basis from May 3, 2006, as it was factually ascertainable that there was an increase the Veteran’s lumbosacral strain with root compression due to spondylolisthesis that rendered him unemployable. Accordingly, the Board finds that an award of TDIU on an extraschedular basis for the period from May 3, 2006, to May 18, 2007, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 VA death benefits may be paid to a deceased veteran’s surviving spouse or children in the same manner as if the veteran's death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former prisoner of war and died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). After a full review of the record, the Board finds that the Veteran was continuously rated totally disabled (based on unemployability) for a period of at least 10 years immediately preceding his death. As discussed above, the Board has granted entitlement to a TDIU on an extraschedular basis effective from May 3, 2006. The Veteran died on August [REDACTED], 2016, and his death was not a result of his own willful misconduct. Therefore, the Board finds that the criteria for DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have been met. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.