Citation Nr: 21027336 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-32 283 DATE: May 5, 2021 ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity prior to January 11, 2020, and in excess of 20 percent, thereafter, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 19, 2015 is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine disability has been manifested by pain limiting forward flexion to 40 degrees, at worst, and muscle spasms which at times resulted in abnormal gait or abnormal spinal contour. 2. Prior to January 11, 2020, the Veteran's right lower extremity disability was manifested by symptoms more closely approximating mild, incomplete paralysis. 3. From January 11, 2020, the Veteran's right lower extremity disability was manifested by symptoms more closely approximating moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Prior to January 11, 2020, the criteria for a rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8520. 3. From January 11, 2020, the criteria for a rating in excess of 20 percent for incomplete paralysis of the sciatic nerve of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1972 to September 1980, from November 1989 to March 1990, and from December 1990 to March 1992. Most recently in March 2019, the Board of Veterans' Appeals (Board) remanded the issues on appeal for additional evidentiary development. This matter has been appropriately returned to the Board as all required development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. The Veteran maintains entitlement to a rating in excess of 20 percent for his service-connected lumbar spine disability, currently rated under Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised, effective February 7, 2021, the applicable Diagnostic Codes discussed in this decision were not changed. Under the current criteria, lumbar spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; when, muscle spasm, guarding, or localized tenderness is present but does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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 Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Ankylosis is the complete immobility of a joint in a fixed position. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes a 10 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent rating, the highest available, is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For purposes of assigning evaluations for IVDS under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Veteran sought an increased rating for his lumbar spine disability in May 2014; thus, the Board will review all relevant evidence from one year prior to that date. Turning to the evidence of record, the Veteran's medical treatment records document complaint and treatment for chronic back pain throughout the appeal period. In July 2014, the Veteran was provided a VA examination. There, he reported constant back pain, coldness, and flare-ups that prohibited him from bending over. Range of motion testing was performed. Forward flexion was to 65 degrees, with objective evidence of pain at 0 degrees. Extension was to 10 degrees, with objective evidence of pain at 0 degrees. Right lateral flexion was to 10 degrees, with objective evidence of pain at 0 degrees. Left lateral flexion was to 15 degrees, with objective evidence of pain at 0 degrees. Right lateral rotation was to 5 degrees, with objective evidence of pain at 0 degrees. Left lateral rotation was to 15 degrees, with objective evidence of pain at 0 degrees. The Veteran was able to perform repetitive use testing with three repetitions. Post-test forward flexion was to 75 degrees. Post-test extension could not be performed due to pain. Post-test right lateral flexion was to 10 degrees. Post-test left lateral flexion was to 15 degrees. Post-test right lateral rotation was to 5 degrees. Post-test left lateral rotation was to 15 degrees. The examiner noted that after repetitive use, the Veteran exhibited less movement than normal and pain on movement. The Veteran also displayed mid-low back tenderness. The Veteran did not exhibit guarding but had muscle spasm of the thoracolumbar spine. These spasms did not result in abnormal gait or abnormal spinal contour. Muscle strength testing yielded normal results. The Veteran did not display muscle atrophy. The reflex and sensory examinations were normal. Straight leg raising tests were positive. The Veteran did not display any signs or symptoms of radiculopathy. There was no ankylosis of the spine. No other neurologic abnormalities were found. The Veteran did not have a diagnosis of IVDS. The Veteran endorsed the constant use of a cane and attributed its use to a left knee disability. The Veteran's functional impairment was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies revealed arthritis. They did not reveal thoracic vertebral fracture with loss of 50 percent or more of height. Concerning functional impact, the disability would severely impact the Veteran's ability to lift, carry, push, and pull heavy objects. The Veteran underwent a VA examination in August 2015. There, the Veteran complained that his back disability was worsening with age and was characterized by constant pain, increased pain with forward flexion or sitting erect for longer than fifteen minutes. He denied flare-ups. Range of motion testing was not performed during the examination as the Veteran reported that he was experiencing pain. There was no evidence of pain with weightbearing. There was objective evidence of localized tenderness in the right low and mid lower back with light touch that did not result in an abnormal gait or abnormal spinal contour. The Veteran was not being examined immediately after repetitive use over time. The examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She was unable to say whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time without resorting to mere speculation because range of motion testing was not performed. The Veteran did not have muscle spasms or guarding. Muscle strength testing yielded normal results. The Veteran did not display muscle atrophy. The reflex and sensory examinations were normal. Straight leg raising tests were negative. The Veteran exhibited signs or symptoms of radiculopathy in his right lower extremity, including mild intermittent pain. The radiculopathy of the right lower extremity was described as mild. There was no ankylosis of the spine. No other neurologic abnormalities were found. The Veteran did not have a diagnosis of IVDS. The Veteran endorsed the constant use of a cane due to left knee weakness and giving way and foot pain. He did not ascribe its use to his lumbar spine disability. The Veteran's functional impairment was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies revealed arthritis. They did not reveal thoracic vertebral fracture with loss of 50 percent or more of height. Concerning functional impact, the examiner noted that the Veteran would have difficulty with heavy lifting, carrying, pushing, and pulling due to pain. At the Veteran's February 2019 hearing, he testified that his lumbar spine disability was worsening over time. He reported increasing, constant pain, coldness, and daily muscle spasms. The Veteran attended another VA examination in January 2020. There, he described back pain that impaired his ability to stand or walk for long periods of time. The Veteran stated that he had received back injections to help with his constant back pain. The injections had become less helpful over time. He reported the use of cyclobenzaprine as needed. He denied flare-ups of back pain. Range of motion testing was performed. Forward flexion was to 50 degrees. Extension was to 15 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 20 degrees. Right lateral rotation was to 15 degrees. Left lateral rotation was to 15 degrees. The examiner noted that the Veteran could not bend or squat without increased pain. Pain was observed with all ranges of motion. There was also evidence of pain with weightbearing and sharp pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examiner observed that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She found that pain, fatigue, and weakness impacted the Veteran with repetitive use over time and was able to describe this impact in terms of range of motion. Forward flexion was to 40 degrees. Extension was to 5 degrees. Right lateral flexion was to 10 degrees. Left lateral flexion was to 10 degrees. Right lateral rotation was to 5 degrees. Left lateral rotation was to 5 degrees. The Veteran did not exhibit guarding. He had muscle spasms resulting in abnormal gait or abnormal spinal contour. Additional factors contributing to disability included interference with sitting and standing. Muscle strength was reduced. No muscle atrophy was present. The reflex and sensory examinations were normal. Straight leg raising tests were negative. The Veteran exhibited signs or symptoms of radiculopathy in his right lower extremity, including moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The radiculopathy of the right lower extremity was described as moderate. There was no ankylosis of the spine. No other neurologic abnormalities were found. The Veteran did not have a diagnosis of IVDS. He did not endorse the use of any assistive devices. The Veteran's functional impairment was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies revealed arthritis. They did not reveal thoracic vertebral fracture with loss of 50 percent or more of height. Concerning functional impact, the examiner noted that the Veteran could not sit, stand, or walk without increased back pain. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's lumbar spine disability. The evidence does not support a finding of forward flexion of the thoracolumbar spine that was limited to 30 degrees. The Veteran's forward flexion on examination was limited to 40 degrees, at worst. Additionally, the evidence of record does not document favorable ankylosis of the entire thoracolumbar spine. While the Board acknowledges that range of motion testing was not performed at the August 2015 VA examination due to the Veteran's reports of pain, there is no objective evidence that supports that this was due to ankylosis, defined as complete immobility of a joint in a fixed position; in fact, the examiner at that examination and all other examiners determined that there was no ankylosis of the Veteran's spine. Additionally, the Board observes that the Veteran has at no time been diagnosed with IVDS, nor has he reported accompanying incapacitating episodes with physician required bedrest. Thus, Diagnostic Code 5243 is inapplicable. The Board has considered whether a higher rating is warranted based on functional loss due to pain, weakness, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, even when considering the Veteran's impairment due to functional loss, his symptoms did not more nearly approximate the next higher rating criteria at any time during the appellate period under consideration. Regarding neurological impairment, the Veteran has already been awarded service connection for his associated incomplete paralysis of the sciatic nerve of the right lower extremity, which will be addressed below. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability. In reaching this decision, the Board has considered the Veteran's lay statements in support of this claim. The Board notes that the Veteran is competent to report observations regarding the severity of his lumbar spine symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. To the extent the Veteran maintains that his symptomatology was more severe than is currently rated, the Veteran's statement must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence does not show that a rating in excess of 20 percent for the Veteran's lumbar spine disability is warranted. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). 2. Entitlement to a rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity prior to January 11, 2020, and in excess of 20 percent, thereafter, is denied. The Veteran maintains entitlement to a rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity prior to January 11, 2020, and in excess of 20 percent thereafter. This disability is rated under Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. 38 C.F.R. § 4.71a, Diagnostic Code 8520. A 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. An 80 percent rating is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. The Veteran sought an increased rating for this disability in May 2014; thus, the Board will review all relevant evidence from one year prior to that date. Turning to the evidence of record, at the Veteran's July 2014 VA examination, he described intermittent shooting pain down his right leg that was aggravated by prolonged standing. On clinical evaluation, the Veteran exhibited moderate intermittent pain in his right lower extremity. Muscle strength testing yielded normal results. The Veteran did not display muscle atrophy. The reflex examination results were also normal. The sensory examination was normal. There were no trophic changes observed. The Veteran's gait was abnormal due to left knee surgery. Mild, incomplete paralysis of the right sciatic nerve was documented. The Veteran endorsed the constant use of a cane which he attributed to a left knee disability. The Veteran's functional impairment was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Concerning the functional impact of the disability, the examiner noted that it would mildly impact his ability to stand and walk or perform prolonged bending motions. At the Veteran's August 2015 VA examination, he described increasing aching to the right lower back with radiation of pain to the right upper thigh and numbness. On clinical evaluation, the Veteran exhibited mild intermittent pain in his right lower extremity. Muscle strength testing yielded normal results. The Veteran did not display muscle atrophy. The reflex examination results were also normal. Decreased sensation in the Veteran's right thigh/knee was noted. There were no trophic changes observed. Mild, incomplete paralysis of the right sciatic nerve was documented. The Veteran's gait was abnormal due to his low back, left knee, and bilateral foot conditions. He endorsed the use of a cane for stability due to those conditions. The Veteran's functional impairment was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Concerning the functional impact of the disability, the examiner found that the Veteran's disability less likely would impact physical or sedentary labor in the absence of significant deficits on physical examination. During the Veteran's February 2019 hearing, he testified that he experienced tingling and burning along his side that radiated into his leg. The Veteran attended another VA examination in January 2020. There, he again reported pain, numbness/tingling in his right leg that has progressively worsened. On clinical evaluation, the Veteran exhibited moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in his right lower extremity. There was decreased muscle strength in both knees and ankles. The Veteran did not display muscle atrophy. The reflex examination results were normal. The sensory examination was normal. There were no trophic changes observed. The Veteran's gait was normal, and he denied the use of assistive devices. Moderate, incomplete paralysis of the right sciatic nerve was documented. The Veteran's functional impairment was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Concerning the functional impact of the disability, the examiner observed that the Veteran cannot sit, stand, or walk for long periods of time without increased pain, numbness, and tingling in the right leg. Prior to January 11, 2020, the Board finds that a rating in excess of 10 percent is not warranted. The evidence is insufficient to show that the Veteran's right lower extremity disability has been manifested by moderate incomplete paralysis of the sciatic nerve, such that a rating in excess of 10 percent is warranted under Diagnostic Code 8520. During that period, the Veteran's disability was characterized by mild to moderate intermittent pain in his right lower extremity with no additional symptoms. He showed normal muscle strength in his right lower extremity. There were no findings of muscle atrophy. Deep tendon reflexes were normal. No trophic changes were observed. Further, all VA examiners who assessed the Veteran during this portion of the appellate period characterized the severity of the Veteran's incomplete paralysis of the sciatic nerve as mild. These findings most closely correspond to no more than a 10 percent disability rating under Diagnostic Code 8520 for the period prior to January 11, 2020. From January 11, 2020, the Board finds that a rating in excess of 20 percent is not warranted. During this period, the Veteran's disability has been characterized by moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in his right lower extremity. He showed normal muscle strength in his right lower extremity. There were no findings of muscle atrophy. Deep tendon reflexes were normal. No trophic changes were observed. The nerve involvement was wholly sensory and, under Diagnostic Code 8520, when the involvement is wholly sensory, the rating should be for the mild, or, at most, moderate degree. Further, when the examiner's characterization of the disability as moderate is considered together with all of the findings as to the Veteran's right lower extremity symptoms, the Board concludes that the criteria for an evaluation in excess of 20 percent under Diagnostic Code 8520 have not been met. In summary, a rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity prior to January 11, 2020 is not warranted, nor is a rating in excess of 20 percent for incomplete paralysis of the sciatic nerve of the right lower extremity from January 11, 2020. REASONS FOR REMAND Entitlement to a TDIU prior to June 19, 2015 is remanded. Total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). The Board notes that in an August 2020 rating decision, the RO granted TDIU, effective June 19, 2015. However, as the Veteran's TDIU claim was part and parcel of his increased rating claim for a lumbar spine disability that was filed on May 12, 2014, the period from May 12, 2014 to June 19, 2015 remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that the grant of a TDIU for a portion of the period does not bifurcate the appeal from the underlying disability appeal because it only serves as a partial grant so when the AOJ fails to grant the benefit in full [i.e., entitlement to a TDIU for the entire period on appeal], that portion of the claim that remains unresolved is still on appeal). The Veteran does not meet the schedular requirements for a TDIU for the period under consideration. However, VA policy is to grant TDIU, regardless of the percentages, when service-connected disability renders a veteran unemployable. 38 C.F.R. § 4.16 (b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16 (b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Here, the Veteran has reported that his service-connected lumbar spine disability, right lower extremity sciatic nerve disability, and bilateral foot disability prevented him from working as a security guard when he last worked in 2010. July 2014 VA examinations show that the Veteran's back pain and flare-ups prohibited him from bending over, that his back disability would severely impact his ability to lift, carry, push, and pull heavy objects, and his right lower extremity sciatic nerve disability would impact his ability to stand and walk or perform prolonged bending motions. Regarding his feet, the examination also showed that there would be impacts on prolonged standing and walking due to pain. While the VA examiners' findings do not preclude the possibility of any employment, they do show that the Veteran's service-connected disabilities significantly impair his employability. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities for the period prior to June 19, 2015, the Board therefore finds that consideration of this TDIU claim for extraschedular consideration is appropriate under 38 C.F.R. § 4.16 (b). Thus, the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16 (b) prior to June 19, 2015 should be referred to the Director of Compensation and Pension Service for adjudication. The matters are REMANDED for the following action: 1. Refer the case to the Director of Compensation and Pension Service for an opinion regarding whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16 (b) for the period prior to June 19, 2015. 2. Thereafter, readjudicate the claim for TDIU prior to June 19, 2015 on an extraschedular basis. If the benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case (SSOC) and return the matter to the Board for further review. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.