Citation Nr: 21030743 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-15 257 DATE: May 19, 2021 ORDER Entitlement to an initial 40 percent rating, but no higher, for a lumbar spine disability is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability more nearly approximates forward flexion of 30 degrees or less due to functional limitations throughout the entire appeal period; neither unfavorable ankylosis nor incapacitating episodes of total duration of more than 6 weeks in the last 12 months due to intervertebral disc syndrome (IVDS) are shown. 2. During the period on appeal, the preponderance of the evidence does not show that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to May 1983. The Veteran testified at a videoconference hearing before the undersigned in August 2018. A transcript is of record. The Board previously remanded these matters in April 2019 and August 2020. As the actions specified in the Board's most recent remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability The Veteran's lumbar spine disability is currently-rated as 20 percent disabling effective September 29, 2013, under Diagnostic Code 5237. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. An April 16, 2021 the Court of Appeals for Veterans Claims (the Court) decision, Chavis v. McDonough, No. 18-2928, held that ankylosis can be met with evidence of the functional equivalent of ankylosis during a flare. Id. at 2. The Court also reiterated that "VA considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness." Id. at 9. The Appellant argued that his spine disability results in the functional equivalent of ankylosis during flare-ups that render him unable to move. Id. at 12. The Court vacated the prior Board denial of an increased rating, remanding the claim for the Board to consider whether the Appellant's symptoms during flare-ups result in the functional equivalent of ankylosis. The evidence shows that the Veteran has not been diagnosed with intervertebral disc syndrome (IVDS) at any time during the period on appeal. As such, the Board need not consider the application of the Formula for Rating IVDS Based on Incapacitating Episodes under Diagnostic Code 5243. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. Turning to the relevant evidence of record, the Veteran underwent a lumbar spine MRI at a VA facility in April 2013. Imaging revealed mild spondylotic changes mainly in the lower lumbar spine without significant canal or foraminal compromise. The Veteran was provided with VA spine examinations in February 2015, January 2020, and in January 2021. On examination in February 2015, the Veteran was capable of forward flexion to 60 degrees, extension to 20 degrees, left lateral flexion to 25 degrees, right lateral flexion to 25 degrees, left lateral rotation to 25 degrees and right lateral rotation to 25 degrees. The examiner noted objective evidence of painful motion at 55 degrees. Repetitive-use testing did not result in additional loss of range of motion. However, the examiner noted functional loss resulting in less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The examiner noted that guarding or muscle spasms resulted in abnormal gait, and lumbar paraspinal muscle tenderness left greater than right. The Veteran reported daily pain and stiffness. A January 2015 VA consult note, documents the Veteran's reports of having progressively worsening lumbar spine pain. The pain was noted as constant, with no radicular pain. The Veteran reported that pain was aggravated by working and better by not working. The Veteran's lumbar flexion was recorded at 70 degrees, with extension to 30 degrees. A February 2015 VA ambulatory care pain clinic note documents the range of motion of the Veteran's back as restricted to 60 degrees flexion, paralumbar myofascial tenderness to moderate palpation, no bony tenderness. Pain on flexion, extension, lateral bending, and twisting were noted. Pursuant to this same visit, the Veteran's lumbar pain was documented as activity related and constant. During a June 2017 VA pain clinic visit, the Veteran described low back pain as deep, aching, throbbing, sharp, and spasms. Pain was exacerbated by physical activity, sustained positions. Pain was alleviated by warm baths for a short duration. On exam, the Veteran's provider observed pain with palpation of lumbar paraspinals with notable muscle spasms, increased pain with extension, relieved with flexion. The provider further noted that the Veteran ambulated with a forward flexed posture, and that he had difficulty with seated to standing transfers. April and July 2018 VA pain clinic notes document full range of motion in the Veteran's lumbar spine. During his August 2018 hearing, the Veteran testified to experiencing flare-ups two to three times a week, lasting all day. The Veteran also experiences severe pain, after mowing his lawn, for example. The Veteran testified that he uses a hot tub, heating pads, TENS units, and that he "tr[ies] everything to get [his back] to relax and it's usually a day a day and a half before [he] get[s] back to where [he] can somewhat function." The Veteran also has difficulties getting out of bed in the morning, testifying that when he does get up that it takes about 20 minutes of walking around the house before he gets to a point at least where he doesn't look like he is in pain, even though he still is. The Veteran wears a back brace 3-4 times a week and sometimes daily depending on what he is doing. The Veteran experiences back spasms but no shooting pain, numbness, or tingling in his lower extremities. The Veteran can bend "some", but he cannot pick anything up when he is bent over. The Veteran testified that if he were to attempt this, his back would knot up or "spasm out." The Veteran's wife testified that while the Veteran is able to help out with household chores, he does so at a minimal pace and that he must take many breaks and stop. In January 2020, the Veteran underwent an additional VA examination. The Veteran reported experiencing flare-ups on his lumbar spine. Specifically, the Veteran stated that with prolonged overuse of the back such as bending or lifting, he gets "knots" and spasms in his back, which increases low back pain, and may then require the Veteran to stop all activity and lie flat for relief. At time of maximal pain, with all activity stopped and resting, the Veteran's back motion is 0 degrees. On examination, the Veteran was capable of forward flexion to 50 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, right lateral flexion to 20 degrees, left lateral rotation to 15 degrees and right lateral rotation to 20 degrees. Pain resulting in functional loss was noted on exam. The examiner noted pain on weightbearing, but no objective evidence of localized tenderness or pain on palpation. The examiner noted no ankylosis, no intervertebral disc syndrome (IVDS), and no other neurological abnormalities. While the Board found the exam to be incomplete and therefore partially inadequate in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the remaining parts of the exam are probative as to the severity of the Veteran's lumbar spine disability at that time. Pursuant to the Board's August 2020 remand, the Veteran was afforded a new VA examination in January 2021. The Veteran reported current symptoms of pain, stiffness, tightness, and muscle spasms. The Veteran also reported once a week flare-ups, noting "since its been cold its really been bad. I don't walk upright because it hurts to stand erect. I waddle because I can barely move." On examination, the Veteran was capable of forward flexion to 45 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 15 degrees and right lateral rotation to 15 degrees. Pain resulting in functional loss was noted on exam and documented as limited range of motion and painful motion. The examiner noted pain on weightbearing but none on nonweightbearing, and objective evidence of tenderness with palpation. The examiner was unable to conduct repetitive use range of motion testing due to the Veteran's fear of pain. The examiner noted that pain and weakness result in functional loss, and portrayed this in terms of range of motion as forward flexion to 40 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees. During periods of flare-up, the examiner noted that pain and incoordination result in additional functional loss. This was estimated as forward flexion to 35 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 10 degrees. The Veteran had muscle spasms resulting in abnormal gait or abnormal spine contour. The Veteran did not have any radicular pain and no other signs or symptoms due to radiculopathy. The examiner noted no ankylosis no IVDS, and no other neurologic abnormalities. Nothing in the record indicates that the Veteran has sought private treatment for his lumbar spine disability during the period on appeal. Resolving any doubt in the Veteran's favor, the Board finds that throughout the period on appeal, an initial 40 percent rating, but no higher, is warranted. Considering the subjective and clinical evidence of record, the Veteran's lumbar spine disability has approximated forward flexion of the thoracolumbar spine to 30 degrees or less during flare ups of pain, muscle spasms, and "knots" in his lower back, and on repetitive use of motion, so as to warrant a higher 40 percent initial rating. The Board has also considered whether the Veteran's symptoms approximate ankylosis in light of Chavis v. McDonough. In Chavis, the Court noted the Dorland's definition of ankylosis as "complete limitation of motion." See Dorland's Illustrated Medical Dictionary at 94 (33d ed. 2019). The Board has reviewed the objective medical evidence of record and does not find that the Veteran's symptoms, including during periods of flare-up, approximate ankylosis. The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-07. The Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected lumbar spine disability is the functional equivalent of ankylosis. Notably, all of the VA examinations from the period on appeal demonstrated that the Veteran had at least some range of motion in his lumbar spine, even with Deluca considerations. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a rating higher than 40 percent based on functional loss. As such, the Veteran is not entitled to a higher rating under the General Rating Formula for limitation of spine movement. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The findings provided in the examination reports are adequate to decide the claim. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finally, the Board notes that the evidence of record from the period on appeal is silent for complaints or treatment of any neurological abnormalities related to the Veteran's lumbar spine disability. See 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1). As no neurological abnormalities have been shown by the objective evidence of record, the Board does not find that separate disability ratings for neurological manifestations are warranted. In reaching the above conclusions, the Board has also considered the Veteran's statements that describe his pain and discomfort. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the Board has considered the lay statements of record, the Board has given them appropriate weight where they are consistent with the objective medical evidence of record. However, the Board has accorded greater weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise and this issue involves a medical determination that is complex. Therefore, the medical evidence is more probative regarding the Veteran's claim in this case, and the most probative medical evidence has shown that an initial rating in excess of 40 percent for the Veteran's lumbar spine disability is not warranted at any time during the period on appeal. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial rating of 40 percent, but no higher, for the Veteran's lumbar spine disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DCs 5237, 5242; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU The Veteran's claim for a TDIU was raised during the pendency of his appeal of entitlement to an initial higher rating for a lumbar spine disability, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to a service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 2. Entitlement to a TDIU is denied. As of this decision, from September 29, 2013, the Veteran is service-connected for a lumbar spine disability at 40 percent disabling, and from April 23, 2019, the Veteran is service-connected for tinnitus at 10 percent disabling, and for right ear hearing loss at noncompensably disabling. Therefore, the Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). Having determined that the Veteran is not eligible for assignment of a schedular TDIU at any time during the period on appeal, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities, such that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. In March 2020 the RO sent the Veteran correspondence requesting that he complete and return VA Form 21-8940 Application for Increased Compensation Basse on Unemployability. The Veteran did not respond. In August 2020, the Board remanded this matter for evidentiary development, including to contact the Veteran and request that he complete VA Form 21-8940 Application for Increased Compensation Based on Unemployability. In August 2020, the Regional Office (RO) sent the Veteran a requesting that he complete VA Form 21-8940. The Veteran did not respond. The evidence of record indicates that the Veteran was self-employed as both a truck driver and tow truck driver from 1998-2016. See August 1, 2016 and August 1, 2018 VA treatment notes. The evidence of record further reflects that the Veteran worked in a junk yard. See July 21, 2015 VA Emergency Room Note. During a January 2020 VA examination for his lumbar spine disability, the Veteran also reported having worked as a mechanic at times and that he "still does some minor work at times, but must be careful about back pain." See January 15, 2020 VA examination. The Veteran's educational history is unclear from the record. VA treatment records document reports of the Veteran having a high school diploma, but VA treatment records also indicate that the Veteran has a college degree. See generally VA treatment records. The Veteran underwent a VA spine examination in February 2015 to assess the current severity of his lumbar spine disability. The examiner noted that the Veteran's lumbar spine disability impacted his ability to work. Specifically, the examiner noted that as a result of his condition, the Veteran could lift10 pounds daily, walk 2 blocks at one time, walk on an unlimited basis during an 8 hour day so long as he has breaks every 15-20 minutes, that the Veteran could sit/stand for 15-20 minutes at a time, and that the Veteran could sit/stand on an unlimited basis during an 8 hour day so long as he has breaks every 15-20 minutes. A June 2017 VA Social History note states that the Veteran is unable to work "due to pain." The note further indicates that the Veteran's daily activities as some housework, and that he attends physical therapy. An August 2018 VA treatment note documents the Veteran's report that he was unemployed and not interested in returning to work. The Veteran also reported being unable to maintain gainful employment due to his chronic lumbar back pain and cervical strain. At his August 2018 hearing, the Veteran testified that he was not employed due to his back condition. He further testified that manual/physical labor causes his back to spasm, and knot up, to a point where he can't bend and cannot do anything. The Veteran's wife testified that the Veteran is no longer able to work as a tow truck driver due to his lumbar spine disability. The Veteran underwent a hearing loss and tinnitus VA examination in May 2019. The examiner noted that neither the Veteran's hearing loss nor his tinnitus impacts his ability to work. The examiner noted that the Veteran's lumbar spine disability impacts his ability to work in that he may have difficulty with prolonged bending and lifting. The Veteran underwent an additional VA spine examination in January 2020. The examiner noted that the Veteran was a truck driver including tow truck owner but could not continue due to strain on the back. The Veteran was not working at the time of the exam and stopped working two years prior when he got social security disability benefits for generalized arthritis, including the back. Pursuant to a January 2021 VA spine examination, the examiner noted that the Veteran's lumbar spine disability impacts his ability to work. Specifically, lumbar strain causes pain with prolonged sitting. The Veteran is also unable to stand for prolonged time or ambulate. The examiner further noted that the Veteran's degenerative arthritis of the spine causes pain, stiffness, difficulty sitting for a prolonged time, and that the Veteran is unable to bend. There is nothing in the Veteran's medical records to suggest that his service-connected lumbar spine, tinnitus, or right ear hearing loss disabilities cause such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). The Board also finds it significant that the Veteran did not respond to two requests from VA to provide further information needed to substantiate his claim for a TDIU. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. 190 (1991). (Continued on the next page) Finally, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that his service-connected disabilities affected the Veteran's employment, the assigned schedular ratings for these disabilities compensated the Veteran for such impairment. Accordingly, referral of this case to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is not warranted. The Veteran's claim for entitlement to a TDIU is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.