Citation Nr: 21027467 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-22 478 DATE: May 5, 2021 ORDER Effective March 26, 2010, entitlement to a 20 percent evaluation for a thoracic spine disability have been met. From March 28. 2018, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Taking into account functional impairment, from March 26, 2010, the Veteran's thoracic lumbar symptomatology more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, and without incapacitating episodes. 2. From March 28. 2018, the probative evidence of record shows that the Veteran's service-connected conditions preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Effective March 26, 2010, the criteria for an evaluation of 20 percent for a thoracic spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REMAND Entitlement to a TDIU prior to March 28, 2018 is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1989 to February 1993, and June 1996 to November 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2015 and October 2015 rating decisions of the Fort Harrison, Montana, Department of Veterans Affairs (VA) Regional Office (RO). In February 2018 a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In an October 2019 decision, the Board denied entitlement to an initial evaluation higher than 10 percent for thoracic spine disability prior to October 13, 2015, and higher than 20 percent thereafter, and denied entitlement to a TDIU. In July 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial and remanded the above referenced issues to the Board pursuant to a joint motion for partial remand (JMPR). The issue of entitlement to an increased evaluation higher than 20 percent for thoracic spine disability from October 13, 2015, was not appealed to the Court. 1. Entitlement to an initial evaluation higher than 10 percent for a thoracic spine disability prior to October 13, 2015 Lumbar spine disabilities are rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedule criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations 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. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the schedule is to recognize painful motion with joint or peri-articular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). In June 2015, the Board issued a decision granting service connection for the back. The RO implemented the grant in a June 2015 rating decision, assigning a 10 percent evaluation effective March 26, 2010. In an April 2016 rating decision, the RO granted a 20 percent for his back, effective October 13, 2015. The Veteran is evaluated under diagnostic codes 5242-5237. In March 2013, the Veteran underwent an examination. He was diagnosed with mild degenerative changes in the thoracic spine. He was undergoing treatment with a chiropractor two to three times per month. He reported being fired because of his back in September 2011. He reported being able to dress, bathe, use the toilet; however, he needs assistance taking his boots off. He must constantly reposition himself. Range of motion testing revealed flexion to 90 degrees, with painful motion at 70 degrees, extension to 30 degrees with pain, right and left lateral flexion to 30 degrees with no evidence of painful motion, and right and left lateral rotation to 30 degrees with no evidence of painful motion. Following three repetitions range of motion was flexion to 90 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. Functional loss was described as less movement than normal, excess fatigability, incoordination. He had tenderness to palpation over the upper thoracic paravertebral muscle regions, with no muscle spasms noted. He had no guarding or muscle spasms of the thoracolumbar spine. There was no ankylosis, radiculopathy, or intervertebral disc syndrome. The Veteran underwent another examination in October 2015. He reported being unable to work because of the pain. He reported being instructed to not lift anything more than 10 pounds at a time. He reported using a cane for ambulation. He was motivated to learn new sedentary skills. He did not report any negative impact on activities of daily living or sedentary occupational pursuits. He was last employed in September 2011. He denied flare-ups of the spine, or any functional loss or impairment of the spine. He had pain in each range of motion, with evidence of pain with weight bearing. He had tenderness or pain on palpation of the soft tissue of the thoracic spine. There was no additional loss of function or range of motion after three repetitions. He had localized tenderness and guarding that result in abnormal gait or abnormal spinal contour. The examiner opined that the Veteran's back condition had no impact on his ability to work. The examiner concluded there was no objective clinical evidence of significant impairment preventing gainful sedentary employment. The Veteran underwent an examination in October 2018. The Veteran reported constant middle back pain that becomes a stabbing and tingling pain when standing up, and constant lower back pain that makes him feel as though he needs to shift positions and stretch. Range of motion testing revealed flexion to 65 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. He had painful motion in forward flexion, left lateral flexion, and left lateral rotation. There was no evidence of localized tenderness or pain on palpation of the joint. There was no evidence of pain with weight bearing. Following three repetitions range of motion was flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees, with pain and fatigue. Pain, weakness, fatigability, and lack of endurance limit functional ability with repeated use over time, with the following range of motion described flexion to 60 degrees, extension to 10, right lateral flexion to 25, left lateral flexion to 15, right lateral rotation to 30 and left lateral rotation to 20. The Veteran was not examined during a flare-up or immediately after repetitive use over time, and the examination was deemed neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with a flare up. In terms of range motion, the Veteran described a constant, severe pain that could not get any worse, and did not experience flare-ups. He had muscle spasms that do not result in abnormal gait or abnormal spinal contour. There was no evidence of guarding. He had mild thoracic kyphosis, likely due to thoracic spine disability with degenerative changes. Straight leg raising testing was negative, and there was no evidence of radiculopathy. There was no evidence of ankylosis or intervertebral disc syndrome. There was no objective evidence of pain on non-weight bearing, and passive range of motion testing could not be performed as it was not medically appropriate. As for functional impact, the Veteran would have difficulty with frequent bending, lifting, or physically demanding tasks, due to pain, weakness, decreased range of motion. He would additionally have difficulty maintaining a sedentary position for long periods, such as driving. The Veteran underwent an examination in March 2019. The Veteran reported constant back pain described as tight with tingling sensation, and sometimes like a knife is in the mid back between the shoulders. He reported pain as 4 out of 10, with flare-ups reaching a 10/10. He goes to chiropractic therapy biweekly. Precipitating factors are lifting things like trash bag or a grandchild, sitting too long, and walking more than 50 yards. Alleviating factors are stretching, medication, and chiropractor treatment. He could get dressed, bathe, and feed himself without assistance. He stated that bending over to put shoes on is difficult. He described flare-ups that occur at least once per week, and then he is down for a day or two. The flare-ups last as long as four days, occurring after prolonged walking or standing. He then requires rest, medication, ice pack or heating pack, a TENS unit, and chiropractic appointments. Functional loss was described as he cannot play ball with the children, or ride in a boat or on a four-wheeler anymore. Range of motion testing revealed flexion to 70 degrees, extension to 30 degrees, right lateral flexion, and rotation to 30 degrees, and left lateral flexion and rotation to 20 degrees. He had pain on examination that did not result in or cause functional loss. He had pain in forward flexion, left lateral flexion, and left lateral rotation. There was no evidence of pain with weight bearing. There was objective evidence of pain, with tenderness to palpation over the right trapezius muscle and right thoracolumbar paravertebral muscles with spasm. Following three repetitions flexion was to 60 degrees extension to 30 degrees, right lateral flexion, and rotation to 30 degrees, and left lateral flexion and rotation to 20 degrees. He was not examined immediately after repetitive use over time. The examination was deemed medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness fatigability or incoordination do not significantly limit functional ability with repeated use over a period time. The examination was not conducted during a flare-up, and pain, weakness, fatigability, or incoordination do not significantly limit functional ability with a flare-up. He had guarding or muscle spasms of the thoracolumbar spine, but it did not result in abnormal gait or abnormal spinal contour. He endorsed muscle tightness to the right trapezius and right thoracolumbar paravertebral muscles. Muscle strength testing was normal, and he had no atrophy. Reflex testing was normal. Straight leg raising test was normal, and he had no radiculopathy, or other neurologic abnormalities. There was no ankylosis. He did not have intervertebral disc syndrome. He used a cane on a regular basis. The Veteran reported being in a flare-up, which he reported as being precipitated by the 21-mile drive from Elliston, MT to Fort Harrison. The reduction in range of motion, both initially and after 3 repetitions, was at least as likely as not consistent with the Veteran's subjective reporting regarding frequency, duration, and severity of decreased range of motion. There was no evidence of pain on passive range of motion testing, or when the joint was used in non-weight bearing. The Veteran's back condition had no impact on his ability engage in sedentary activities. The March 2013 examiner recorded the Veteran's flexion was limited to 90 degrees with evidence of pain at 70 degrees. The Veteran had additional limitation of range of motion following repetitive-use testing, as well as functional loss manifested as less movement than normal, excess fatigability, incoordination, and impaired ability to smoothly execute skilled movements. The examiner did not provide an opinion on whether pain significantly caused functional loss during a flare-up or after repeated use over time. Further, the examiner didn't explain why such measurements weren't possible to obtain. Under Sharp, the Court found an examiner's opinion that he or she could not opine without resorting to speculation could be treated as adequate only when the examiner has considered all procurable and assembled data before stating an opinion cannot be reached and has explained the basis for his or her conclusion that a non-speculative opinion cannot be offered. Sharp v. Shinseki, 29 Vet. App. 26, 34-35 (2017). The March 2013 examination further did not measure ROM limitation on weight bearing and non-weight bearing. See Correia v. Shinseki, 28 Vet. App. 158, 168-170 (2016); 38 C. F. R § 4.59. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that a 20 percent evaluation is warranted for the entire period on appeal for the Veteran's thoracic spine disability. As noted above, a 20 percent rating is warranted under DC 5237 for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. In this case, prior to October 13, 2015, the lowest flexion on examination was to 90 degrees, with painful motion at 70 degrees. However, the Board must take into account the additional limitations the Veteran experiences due to such symptoms as pain. DeLuca, supra; Burton, supra; 38 C.F.R. §§ 4.40, 4.59. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this regard, the Veteran had constant back pain throughout the period on review, reported as knife-like pain in his mid-back, which became unbearable when attempting to lift things, sitting for longer than 15 to 20 minutes at a time, and walking more than 50 yards. His condition interfered with bending and stooping. This evidence demonstrates functional loss that directly bears on the extent of the Veteran's thoracic disability. His conditions reduced his normal excursion through pain, lessened and weakened movement, and interference with sitting, standing, and ambulating. Given that the March 2013, October 2018 and March 2019 examinations all noted similar symptoms, but only the 2018 and 2019 examinations provide a more complete picture as to the severity of his condition, the Board will resolve reasonable doubt in favor of the Veteran and grant a 20 percent rating for his thoracic spine condition for the entirety of the period on appeal. Accordingly, a 20 percent rating is warranted under Diagnostic Code 5242-5237 based on a limitation of motion. See 38 C.F.R. § 4.71a , Diagnostic Code 5242-5237. Throughout the course of the appeal there has been no indication of IVDS, or of doctor prescribed bed rest. At no time during the course of the appeal, has there been evidence of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, or of unfavorable ankylosis of the entire thoracolumbar spine. Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this thoracic spine disability meets the criteria for higher ratings. Higher evaluations are also available for intervertebral disc syndrome. The Veteran does not have intervertebral disc syndrome or doctor prescribed bed rest. As such throughout the entire period on appeal, a higher evaluation under DC 5243 is not warranted. There is no evidence the Veteran suffers from radiculopathy, or from bowel or bladder impairment. As such, a separate evaluation for neurological impairment is also not warranted. 2. Entitlement to a TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). Id. Service connection is currently in effect for major depression secondary to the service-connected thoracic spine disability, with a 50 percent evaluation from March 28, 2018, thoracic spine disability with a 20 percent from March 26, 2010, and tinnitus with a 10 evaluation from March 26, 2010. He has a combined evaluation of 30 percent from March 26, 2010, and 60 percent from March 28, 2018. As the Veteran's depression is secondary to the service-connected spine disability, these two conditions are considered a single disability based upon common etiology for TDIU purposes. The Veteran is in receipt of a combined evaluation of 60 percent from March 28, 2018. Therefore, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. In an August 2015 statement, the Veteran reported being unable to work as a result of his service-connected disabilities. In a January 2019 statement, the Veteran's attorney asserted the Veteran is unemployed as a direct result of his service-connected disabilities. The Veteran identified his employment history as being employed at Timerline from June 2003 to June 2009, at Nordic Hot Tubs from September 2009 to May 2010, and at Walmart from November 2010 to June 2011. More recently the Veteran was employed as a painter for Skinner Enterprise, LLC, starting July 26, 2011, and his last day of employment was September 26, 2011. In August 2011, the Veteran was pulling a pressure washer out of a truck when he aggravated a pre-existing injury to his back. On or about August 23, 2011, his doctor gave him a letter outlining his work restrictions, detailing that it would be difficult for him to put in a full, 8-hour day, and that he should limit his hours to about 6 hours per day. Social Security Administration records (SSA) indicate that a determination was made in June 2015, that the Veteran was not disabled. The records show the Veteran has some physical impairments that cause some limitations; however, the limitations are not so severe to prevent him from all work-related activities. In the May 2018 TDIU application, he reported being unable to work because it hurt too much to sit, walk, or stand for periods of time. When his back flared up, it felt like a knife in his back. He reported he last work September 2011, for Skinner Enterprise. According to a completed 21-4192, by Skinner Enterprise, the Veteran last worked there in September 2011, and was let go for not following company policy. At the October 2015 back examination, the examiner concluded there was no objective evidence of significant impairment preventing gainful sedentary employment. At the 2018 examination, the examiner indicated the Veteran would have difficulty with frequent bending, lifting, or physically demanding tasks, due to pain, weakness, or decreased range of motion. He would additionally have difficulty maintaining a sedentary position for long periods, such as driving. The March 2019 back examiner concluded the Veteran would have difficulty with pushing, pulling, lifting, carrying, and working overhead. He would also have difficulty with prolonged sitting that did not allow for frequent position changes. The examiner went on to state there is no objective evidence to suggest any impact on ability to communicate, follow instructions, remember, concentrate, interact with coworkers and clients, or in other sedentary social/occupational activities. According to the April 2018 psychiatric examination, the Veteran has occupational and social impairment with reduced reliability and productivity. In March 2021 a vocational assessment was performed. The Veteran's back condition has caused daily constant pain, described as sharp, stabbing, and sometimes tingling. He experienced chronic back pain even at rest. As for his major depression, he preferred to isolate and limit social interaction. He experienced daily fatigue and an overall lack of motivation due to his major depression, becoming easily irritable and anxious due to his mental health condition. Regarding activities of daily living he was able to shower independently, however must use a shower brush, and reported taking quick showers to limit prolonged standing due to his back pin. He received a commercial driver license in 1988, however this is no longer active. He graduated from the correctional officer academy in 2003. He was employed as a painter from June 2011 to September 2011, and reported needing to stretch, lie down and take breaks due to chronic back pain. He was employed with Wal-Mart from November 2010 to June 2011, and reported difficulty pulling and lifting grocery stock. He was employed with Nordic Hot Tubs as a part-time chemical service provider from September 2009 to May 2010, driving to customer homes to tests hot tub water and add chemicals. The examining provider concluded the Veteran's employment was not indicative of substantially gainful employment. According to his Social Security Earnings statements his income in 2010 and 2011 fell below the federal poverty threshold. He was unable to maintain any one position between 2010 and 2011 for 12 consecutive months. His employment had been marginal and unmaintained. Prior to this, he has remote work experiences as a truck driver from June 2003 to June 2009. The vocational specialist concluded, considering the medical records from multiple service providers as they relate to limitation of the Veteran's service connected back condition, it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, to include both skilled and unskilled sedentary work, since at least March 2010 to present. The examiner explained even sedentary employment requires the ability to stand and walk up to one third of an eight-hour workday and sit for more of an eight-hour workday, and lift up to 10 pounds for up to one third of an eight-hour workday. However, the Veteran is severely limited in his ability to sit, stand, walk, lift, and carry. Reference was made to the Social security field report from December 2011, which explained the Veteran had to change positions frequently throughout the interview. An April 2013 primary care note indicated the Veteran was unable to sit for extended periods of time. Further the October 2018 report indicated the Veteran had constant middle back pain, that becomes stabbing and tingling when standing up. These limitations would preclude the Veteran from performing the full range of physical requirements of physical or even sedentary employment as defined. Further, the specialist opined that the Veteran's major depression has at least as likely as not further preclude his ability to secure and follow substantially gainful employment since at least March 2018 to present. The examiner indicated the Veteran would have to sustain focus on work tasks for at least 2 consecutive hours at one time, and spend no more than 10 percent of an eight-hour workday off task. The Veteran's major depression symptoms, specifically depressed mood, impaired motivation, anxiety, panic attacks and memory loss would at least as likely as not render him unable to sustain focus to the extent required by employers. His depression symptoms would be distracting and prevent him from sustaining focus on work tasks for at least 2 consecutive hours. The Veteran has a history of depressed mood and verbal outbursts and irritability that would interfere with his ability to interact with others in an appropriate and professional manner. Further considering the Veteran's educational background and work history, the specialist opined that the Veteran is precluded from his prior semi-skilled and unskilled occupations, as well as all occupations in the competitive workforce, as he is unable to meet the physical demands of sedentary exertional level multitask, sustain attention to detail, appropriately interact with others, or maintain adequate concentration and pace to meet productivity standards. Up until 2011, the Veteran was employed, and the record indicates he was let go for not following company policy. At the 2018 back examination, though the examiner indicated he would difficulty with frequent bending and maintaining a sedentary position for longer periods such as driving. As stated above, the 2019 examiner concluded there was no objective evidence to suggest any impact on his ability to communicate, follow instructions, remember, concentrate, interact with coworkers and clients, or participate in other sedentary social/occupational activities. The Court held that VA must consider "whether the Veteran has the mental ability to perform the activities required by the occupation at issue, factors that may be relevant include, but are not limited to, the Veteran's limitations if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity." Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board acknowledges the apparent opinion of the 2019 examiner indicating there is no impact on his ability to engage in sedentary employment. However, the ultimate unemployability determination is a legal one. See Geib v. Shinseki, 733 F.3d at 1354. The Veteran has experience as a painter, retail employee, and a chemical agent tester. However, he last worked in 2011, and there remains no indication the Veteran has an occupational background that would apply to a sedentary occupation. See also Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018). Further, his psychiatric symptoms would interfere with any employment be it sedentary or physical. Here, the Veteran was diagnosed with depression and the evidence indicates he had trouble with irritability and was unable to concentrate and was easily distracted. As is stated above, he has motivation issues which would interfere with his ability to work be it from home or in an office setting. The Veteran has consistently reported his service-connected conditions have an impact on his ability to secure employment. There is a statement from a private physician attesting to the Veteran's inability to work based on his work history. The realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits are met from March 28, 2018. The most probative evidence of record indicates that because of his service-connected conditions he is not capable of performing physical or sedentary employment. The Board concludes the criteria for an award of TDIU benefits are met as of March 28. 2018. REASONS FOR REMAND 3. Entitlement to a TDIU, prior to March 28, 2018, is remanded. As is explained above, the Veteran does not meet the requirement for a TDIU prior to March 28, 2018. The Veteran's representative has asserted the Veteran is entitled to an extra-schedular grant of TDIU for the period prior to March 28, 2018. Prior to March 28, 2018, his service-connected disabilities meet a combined rating of 30 percent disabling from March 26, 2010. As such, the Veteran does not meet the percentage requirements for TDIU prior to March 28, 2018. 38 C.F.R. § 4.16(a). A TDIU may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section § 4.16(a). This is one of those circumstances. In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 4.16(b) and may only refer the claim to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Although the Veteran does not meet the schedular requirements for a TDIU prior to March 28, 2018, there is ample evidence in the record that his disabilities have impacted his ability to maintain substantially gainful employment. In this case, the Veteran has not worked since 2011. The independent vocational assessment indicated that as a result of his thoracic spine disability the Veteran had severe difficulties functioning normally in an occupational setting due to decreased ability in performing activities that require bending, lifting, standing, walking, or climbing since 2010. As such, this issue is referred to the Director Compensation Service, for extraschedular consideration of TDIU. Accordingly, the case is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to March 28, 2018, to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). 2. If the claim for extraschedular TDIU is not granted, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.