Citation Nr: 21031861 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-06 621A DATE: May 24, 2021 ORDER The reduction of the assigned rating for the Veteran's service-connected intervertebral disc syndrome (IVDS) (previously rated as resultant disc disease and paracentral disc herniation at L4-5 and L5-S1 post laminectomy with scar) from 40 percent to 20 percent, effective April 12, 2014 was improper, and the 40 percent rating is restored. Entitlement to a rating in excess of 40 percent, with the exception of the temporary total rating assigned between May 22, 2015 and July 1, 2015, for the Veteran's service-connected IVDS is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 1, 2016 is remanded. FINDINGS OF FACT 1. In an April 2014 rating decision, the regional office (RO) reduced the evaluation assigned for the Veteran's service-connected IVDS from 40 percent to 20 percent, effective April 12, 2014. 2. As a result of the RO's reduction of the assigned evaluation from 40 percent to 20 percent, effective April 12, 2014, the Veteran's combined evaluation was reduced from 60 percent to 50 percent as of that date. 3. The Veteran was not given proper due process notice regarding the procedures and rights under 38 C.F.R. § 3.105, as it relates to implementation of the reduction of the evaluation for his service-connected IVDS. 4. For the applicable period on appeal, the Veteran's service-connected IVDS has not manifested in unfavorable ankylosis of the lumbar spine or incapacitating episodes (defined as period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) lasting 6 weeks in a 12-month span. CONCLUSIONS OF LAW 1. The reduction of the rating for IVDS from 40 percent to 20 percent, effective April 12, 2014, is void ab initio; restoration of the previously assigned 40 percent disability rating is warranted. 38 U.S.C. §§ 1154 (a), 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.343, 3.344. 2. With the exception of the temporary total rating assigned between May 22, 2015 and July 1, 2015, for the Veteran's service-connected IVDS, the criteria for a rating in excess of 40 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) RO in St. Paul, Minneapolis. In that rating decision, the RO decreased the Veteran's disability rating for his service-connected IVDS from 40 percent to 20 percent, effective April 12, 2014. The Veteran timely appealed. During the appeal period, the RO awarded the Veteran a temporary total rating from May 22, 2015 through July 1, 2015. The 20 percent rating disability rating was restored from July 1, 2015 through September 28, 2020 at which time the RO increased it to 40 percent. The Board will review the record to determine the propriety of the rating reduction and the appropriate rating(s) for the Veteran's service-connected IVDS throughout the appellate period. The issue of entitlement to a TDIU has been reasonably raised by the record and is part and parcel of the Veteran's claim for an increased rating for his service-connected IVDS and will be addressed herein as well. In June 2020, the appeal was remanded for additional evidentiary development. As this development has been completed, the appeal has been properly returned to the Board for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. The reduction of the assigned rating for the Veteran's service-connected IVDS from 40 percent to 20 percent, effective April 12, 2014 was improper, and the 40 percent rating is restored. The Veteran maintains that the RO erred when it reduced the assigned rating for his service-connected IVDS from 40 percent to 20 percent, effective April 12, 2014. There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons supporting the proposed reduction. 38 C.F.R. § 3.105 (e). The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and must be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. In the April 2014 rating decision on appeal, the RO granted service connection for right lower extremity radiculopathy (previously evaluated as sciatica and leg condition) with a 20 percent evaluation, effective November 7, 2013; decreased the evaluation for the Veteran's service-connected IVDS from 40 percent to 20 percent, effective April 12, 2014; and continued 20 percent and 0 percent ratings for left leg L5 radiculopathy and neuralgia paresthetica of the left thigh, respectively. The RO stated in the April 2014 rating decision and accompanying notification letter that the rating reduction did not cause the combined evaluation to be reduced, and thus, 38 C.F.R. § 3.105 (e) was not applicable. The Board disagrees. It appears that the RO reasoned that the Veteran's combined evaluation was not reduced because the Veteran was service-connected for right lower extremity radiculopathy, rated as 20 percent disabling, in the same decision, thus making up for the reduction of the evaluation for the Veteran's IVDS from 40 percent to 20 percent. However, the award of service connection for the Veteran's right lower extremity was effectuated November 7, 2013. Thus, for the period from November 7, 2013 through April 12, 2014, the Veteran's combined evaluation was 60 percent. From April 12, 2014, the date the reduction of the rating for the Veteran's IVDS became effective, the Veteran's combined evaluation was in fact reduced to 50 percent. In sum, although the Veteran was service-connected for right lower extremity radiculopathy and awarded a 20 percent evaluation in the same rating decision that reduced the Veteran's evaluation from IVDS from 40 percent to 20 percent, as described above, the Veteran's monthly rate of compensation was in fact reduced on April 12, 2014, the effective date of the reduction. In light of the above, the Board concludes that there was a reduction in the amount of compensation payable, and thus, contrary to the RO's conclusion, the provisions of 38 C.F.R. § 3.105 (e) are applicable in this case. Importantly, the RO did not satisfy any of the due process requirements under 38 C.F.R. § 3.105 (e) regarding the Veteran's reduction. Specifically, (1) the RO did not provide the Veteran with a rating proposing the reduction or discontinuance which set forth all material facts and reasons, (2) the Veteran was not notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level, and (3) the Veteran was not informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105 (e). The Board notes that this regulation was established to serve as a procedural protection against improper reductions of disability ratings. The United States Court of Appeals for Veterans Claims (the Court) has consistently held that when an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Thus, the Board finds that rating reduction implemented in the April 2014 rating decision, effective April 12, 2014, was improper and thus void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Accordingly, the 40 percent evaluation for the Veteran's service-connected IVDS is restored. 2. Entitlement to a rating in excess of 40 percent, with the exception of the temporary total rating assigned between May 22, 2015 and July 1, 2015, for the Veteran's service-connected IVDS is denied. The Veteran maintains entitlement to a rating in excess of 40 percent for his service-connected IVDS, with the exception of the temporary total rating assigned between May 22, 2015 and July 1, 2015. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result 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 and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptom that warrant different ratings). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's disability is rated under Diagnostic Code 5243. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this Diagnostic Code was not substantively changed. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Under the General Rating Formula for Diseases, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, radiculopathy or bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id., at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., at Note 5. As the Veteran sought the increased rating in November 2013, the Board will review all evidence from one year prior to that date. A November 2012 VA rheumatology clinic note documents the Veteran's history of seronegative rheumatoid arthritis (RA) and degenerative joint disease (DJD) with significant radicular symptoms. Concerning the Veteran's lumbar spine disability specifically, the Veteran reported continued low back pain and radicular symptoms of shooting pain down his thighs. He was advised to continue use of Enbrel and Methotrexate (MXT) for his small joint pain, and to add Tylenol arthritis to his regiment for overall DJD pain management. In May and June 2013 VA rheumatology notes, the Veteran continues to complain of chronic pain in his low back and legs (burning and numbness). In a December 2013 treatment note, a VA medical examiner observes that the Veteran's low back pain limited his activity and hindered weight loss efforts. He was referred at that time to physical therapy. At the Veteran's December 2013 physical therapy consultation, he reported that his pain was so severe that at times he was unable to pick things up from the floor and was not sleeping well, although medication was helpful in that regard. He indicated that the inflammation and swelling were causing most of the pain. The Veteran was educated on self-management, therapeutic exercises, and goals were discussed. The Veteran attended four physical therapy appointments in January and February 2014. In February 2014, he reported that his back pain was more severe and that this prevented him from doing his home exercises. He stated that his pain was about 3/10 at the time of the appointment but that he had to change positions often. The Veteran indicated that the pain was the most severe (10/10) at night and that it took him an hour to get to sleep because of it. The examiner noted that he was using a cane and was walking with better posture and normal gait speed. She educated the Veteran and reviewed pain management and goal setting techniques, performed some therapeutic exercises, and discussed the Veteran's plan of care. The Veteran underwent a VA examination in April 2014. There, he reported that his back "hurts all the time." He denied flare-ups, indicating that the pain was constant and limited his ability to walk, bend, etcetera. Range of motion testing was performed. Forward flexion was to 60 degrees, with objective evidence of painful motion at 60 degrees. Extension was to 30 degrees or greater, with objective evidence of painful motion at 30 degrees or greater. Right lateral flexion was to 30 degrees or greater, with objective evidence of painful motion at 30 degrees or greater. Left lateral flexion was to 30 degrees or greater, with objective evidence of painful motion at 30 degrees or greater. Right lateral rotation was to 30 degrees or greater, with objective evidence of painful motion at 30 degrees or greater. Left lateral rotation was to 30 degrees or greater, with objective evidence of painful motion at 30 degrees or greater. The Veteran was able to perform repetitive use testing with three repetitions without additional limitation of range of motion of the lumbar spine. The examiner observed that the Veteran exhibited functional loss, functional impairment, and/or additional limitation of range of motion of the lumbar spine characterized by less movement than normal and pain on movement. He found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's range of motion and/or functional ability either during flare-ups or when the joint was used repeatedly over a period of time. The Veteran did not exhibit localized tenderness or pain to palpation for the joints and/or associated soft tissue of the lumbar spine, nor did he have guarding or muscle spasm. Muscle strength testing revealed decreased strength. No muscle atrophy was shown. The reflex examination yielded normal results. The sensory examination revealed decreased sensation to light touch in the Veteran's bilateral lower extremities. Straight leg raising tests were negative. The Veteran exhibited signs or symptoms of radiculopathy in the bilateral lower extremities and involvement of the sciatic nerve roots was confirmed. He was diagnosed with moderate radiculopathy in both lower extremities. No other neurological abnormalities were documented. The Veteran's diagnoses of herniated disc at L4-L5 and L5-S1 status post laminectomy and lumbar disc disease with IVDS and radiculopathy of the bilateral lower extremities were confirmed. The examiner noted that the Veteran had no incapacitating episodes of IVDS over the past 12 months. The Veteran endorsed the regular use of a cane and the occasional use of a walker due to back pain. The Veteran's functioning due to his lumbar spine disability was not so diminished that amputation with prosthesis would equally serve him. Imaging studies/diagnostic testing was not performed. Concerning functional impact, the examiner noted that the Veteran could only lift 20 pounds, walk four blocks, and sit/stand for about 20 minutes at a time in any one position. In May 2015, the Veteran underwent a L3-4 decompressive laminectomy, bilateral medial facetectomy, bilateral L3 foraminotomy and in situ fusion. Post-operative notes indicate that the Veteran was recovering as expected. At his June 2015 follow-up, the Veteran reported that he felt "much, much better" than before surgery. He did report continued numbness, primarily in his right leg, and some burning sensation. He reported taking Tramadol at night with Tylenol. He denied any urinary or bowel dysfunction, fever, chills, or night sweats. He endorsed the use of a lumbar brace at times for comfort. He walked with a normal gait with a cane. The Veteran was able to change his position from sitting to standing without a significant degree of difficulty. His incision was healing well with no erythema or drainage noted. Mild swelling was observed, and the Veteran was instructed to use cold applications to help. From a neurosurgical standpoint, the Veteran continued to recover as expected. He was told to follow-up regarding his lumbar spine disability on an as-needed basis. In August and September 2015, the Veteran complained of ongoing discomfort in his back and pain and weakness in his bilateral lower extremities. He stated that pain medication was not providing adequate relief. He denied changes in his bowel or bladder, or fevers or night sweats. His gait was slow but stable. His station was normal. He displayed full range of motion in his lower back. The incisions in his lower back appeared to be well healed. In October 2015, the Veteran went to the VA neurosurgery clinic with complaints of weakness in his legs, causing difficulty with ambulation, and back pain. The examiner noted that the Veteran did not need another operation. He indicated that the Veteran, unfortunately, did not have physical therapy following his surgery and needed to work on that to get stronger. The Veteran attended another VA examination in November 2015. There, he reported continued back pain, numbness in both legs, and burning in the anterior thighs around to the buttocks. He indicated that at times the pain was so severe that he was in bed for a few days. The Veteran stated that he had difficulty with activities of daily living (ADLs) and pain with standing, stooping, and squatting. He indicated that the pain consumed his life. Range of motion testing was attempted but was not performed as the Veteran reported that the pain was too severe. The examiner noted that there was objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue of the spine (wincing and withdrawal). There was also evidence of pain with weightbearing. The Veteran was not examined immediately following repetitive use over time or during a flare-up, but the examiner determined that the examination was medically consistent with the Veteran's statements describing functional loss under those conditions. He found that pain, fatigue, weakness, and lack of endurance caused functional loss with repetitive use over time or during flares but was unable to describe this functional loss in terms of range of motion without resorting to mere speculation. He explained that he had no conceptual or empirical basis for making such a determination without directly observing the Veteran's functioning under these conditions. The Veteran exhibited muscle spasm and guarding that resulted in abnormal gait or abnormal spinal contour. He also displayed localized tenderness. Additional factors contributing to his disability included less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal; the Veteran did not display muscle atrophy. The reflex and sensory examinations were normal. Straight leg raising tests were positive. The Veteran exhibited signs or symptoms of radiculopathy in the left lower extremity and involvement of the sciatic nerve root was confirmed. He was diagnosed with moderate radiculopathy in the left lower extremity. There was no ankylosis of the spine. No other neurological abnormalities were documented. The Veteran was diagnosed with paracentral disc herniation at L4-5 and L5-S1 status post laminectomy with residual scar and resultant disc disease and IVDS with radiculopathy of the left lower extremity. The examiner found that the Veteran had episodes of bed rest having a total duration of 4 weeks but less than 6 weeks during the past 12 months based on the Veteran's reports of frequent episodes of pain requiring 1 to 2 days of bed rest or time in his recliner. The Veteran noted that he had not necessarily seen a doctor during those times. He endorsed the regular use of a cane and the occasional use of a walker for support of his knees secondary to his back disability. The Veteran's functioning due to his lumbar spine disability was not so diminished that amputation with prosthesis would equally serve him. Imaging studies/diagnostic testing was not performed. Concerning the functional impact of the disability, the examiner noted that the Veteran had worked as a barber/hairdresser and had to quit due to pain with stooping and bending. A January 2016 VA rheumatology clinic note indicates that the Veteran had been helped tremendously by the May 2015 surgery and could move around better. He still reported bilateral numbness in the L3 distribution on his thigh, but this too had improved since surgery. The examiner found that the Veteran's lumbar pain appeared to be stable and much improved since surgery. In March 2016, the Veteran underwent a VA Rehab Psychology consultation. He was assessed with chronic pain syndrome, lower back pain, kinosophobia and an unspecified depressive disorder. The Rehabilitation Psychologist noted a history of intractable pain despite numerous interventions, remarked the Veteran had not participated in biofeedback-assisted relaxation, cognitive behavioral/behavioral pain-management, relaxation therapies or other strategies focused on self-management of chronic pain. It also noted the Veteran reported an adverse impact of pain on functioning, specifically, a decreased level of functioning in socializing, family interactions, occupational/volunteer work, recreation/hobbies, household chores, yard work, driving, exercise, sexual intimacy, sleep, and cognition/memory/attention/concentration. That same month, the Veteran began physical therapy again. The Veteran reported he was hurting a lot because he had moved the past weekend but noted that the pain was starting to calm down. He also reported that his flare-up did not last as long it normally would, and reported decreased pain after physical therapy, and indicated he was able to bend over more. The therapist observed that the Veteran did not appear to be in acute distress but did avoid twisting and bending over due to pain. That April, the Veteran reported being sore from running around chasing his grandson the prior Friday. He reported his plans to buy a basketball to start dribbling and to begin shooting the following week. He indicated that the exercises did not cause flare-ups and rated his pain as 3/10. He was issued a pedometer and recommended to begin walking normally for the first couple of days, to set a baseline, and then increase his steps, adding 1,000 steps. The examiner found noteworthy [the Veteran's] report of recent increased mobility and activity engagement and decreased pain secondary to physical therapy. The therapist remarked that the Veteran claimed '[he] was feeling the best [he had] felt in a long time lately.' One May 2016 treatment note reveals that the Veteran was walking more, 2,500 steps per day before his pedometer broke, and reported playing basketball. He also reported performing 25 sit-to-stand repetitions per day. He rated his pain as 1/10. On assessment he demonstrated improved strength and decreased signs of neural tension, described to have met all physical therapy goals. Another May 2016 physical therapy note shows that the Veteran made remarkable success in the physical therapy and occupational therapy reconditioning program. He was noted as much more active, walking, shooting hoops, etc. He was reported as even thinking about looking into part time work. Pain was noted as much improved, although the Veteran reported still getting shooting pain in the left leg occasionally. He also noted that if he performed any work overhead, like hanging curtains, he would get a rush of pain extending from the sacrum up the whole back. On examination, the Veteran was noted as being much more mobile, animated and in good spirits, moving about easily and making transitional movements with little or no difficulty. Furthermore, the report remarked the Veteran was making excellent progress with no more kinosophobia, improved pain control and improved mood. The Veteran was discharged from the rehabilitation program and advised to return if pain became an increasing problem again. VA treatment records through 2020 document ongoing, intermittent treatment for chronic low back pain. In September 2020, the Veteran underwent another VA examination. The Veteran reported that his back pain has progressively worsened over the years. He reported that he stopped working as a hairdresser due to low back pain because he could not stand or bend over to care for clients. He indicated that he was mostly homebound and was unable to work. The Veteran stated that he had difficulty reaching, bending, stooping, lifting, navigating flights of stairs, fatigued easily, stiffness, spasms, and decreased range of motion. Flare-ups occurred 1 to 2 times a week during which the Veteran reported needing bed rest and medication to alleviate increased pain. Range of motion testing was performed. Forward flexion was to 28 degrees. Extension was to 15 degrees. Right lateral flexion was to 10 degrees. Left lateral flexion was to 15 degrees. Right lateral rotation was to 5 degrees. Left lateral rotation was to 5 degrees. Pain was noted on all ranges of motion. There was objective evidence of moderate, midline localized tenderness or pain on palpation of the joint or associated soft tissue of the back. There was also evidence of pain with weightbearing. The Veteran was unable to perform repetitive-use testing with at least three repetitions because it was too painful, and he was unstable on his feet. While the Veteran was not examined immediately after repetitive use over time or during a flare-up, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss under these conditions. She found that pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss with repetitive use over time or during flares. She was able to describe this loss in terms of range of motion. Forward flexion was to 28 degrees. Extension was to 15 degrees. Right lateral flexion was to 10 degrees. Left lateral flexion was to 15 degrees. Right lateral rotation was to 5 degrees. Left lateral rotation was to 5 degrees. The Veteran exhibited guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. Muscle strength testing revealed decreased strength. No muscle atrophy was shown. The reflex examination reflected some hypoactivity. The sensory examination reflected decreased or absent sensation to light touch in the Veteran's bilateral thighs, knees, lower legs, ankles, feet, and toes. Straight leg raising tests were positive. The Veteran exhibited signs or symptoms of radiculopathy in both lower extremities and involvement of the femoral and sciatic nerve roots was confirmed. He was diagnosed with moderate radiculopathy in the bilateral lower extremities. There was no ankylosis of the spine. No other neurological abnormalities were documented. The Veteran was diagnosed with lumbosacral strain and IVDS status post laminectomies. The examiner found that the Veteran had episodes of bed rest having a total duration of at least 6 weeks during the past 12 months based solely on the Veteran's reports. The Veteran endorsed the occasional use of a back brace and the constant use of a cane or walker for his disability and attendant radiculopathy. The Veteran's functioning due to his lumbar spine disability was not so diminished that amputation with prosthesis would equally serve him. Imaging studies/diagnostic testing was not performed. Concerning the functional impact of the disability, the examiner noted that the Veteran's physical work would be limited due to difficulty reaching, bending, stooping, lifting, and navigating long flights of stairs because his back was painful, easily fatigued, stiff, he had spasms, and his range of motion was decreased. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for IVDS based on incapacitating episodes. While the Veteran has reported several periods of self-imposed bed rest, the objective evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician, let alone for a duration that meets the criteria for a higher rating: having a total duration of at least 6 weeks during the past 12 months. In fact, at several points during the appeal period, the Veteran was referred to physical therapy to increase movement, strength, and mobility, and was often encouraged to exercise for weight loss. There is no objective evidence to support a finding that he was prescribed bed rest by any of his healthcare providers. To warrant a higher, 50 percent rating for his IVDS based on limitation of motion, the probative evidence must show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. However, the objective, medical evidence of record does not contain a diagnosis of ankylosis. They confirm that the Veteran has consistently had some range of motion in his spine, albeit limited, at some points during the appellate period. Therefore, it is not fixed in place such that ankylosis can be found, nor has the Veteran's range of motion been so limited as to approximate functional ankylosis. The Board also observes that the Veteran has been separately service-connected for associated neurological impairments, including radiculopathy of the bilateral lower extremities. No other neurological abnormalities related to his lumbar spine disability, such as bowel or bladder problems/pathological reflexes, have been diagnosed or reported. Further, the Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements do not approximate unfavorable ankylosis. In summary, a rating in excess of 40 percent for the Veteran's service-connected IVDS is not warranted at any time during the appeal period, with the exception of the temporary total rating assigned from May 22, 2015 and July 1, 2015. REASONS FOR REMAND 1. Entitlement to a TDIU prior to July 1, 2016 is remanded. The Veteran maintains that he has been unable to work due to his service-connected disabilities. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Since July 1, 2016, the Veteran has had an overall rating of 100 percent as well as special monthly compensation based on housebound status. Thus, TDIU is moot from July 1, 2016 to the present, as the Veteran is already in receipt of maximum benefits. However, the issue of whether a TDIU is warranted prior to July 1, 2016, with the exception of the period from May 22, 2015 and July 1, 2015 during which a temporary total rating was assigned, remains on appeal. During that period, the Veteran was service-connected for his lumbar spine disability, rated as 40 percent disabling, right lower extremity radiculopathy, rated as 20 percent disabling, left lower extremity radiculopathy rated as 20 percent disabling, a surgical scar of the lower back, rated as 0 percent disabling, and neuralgia of the left thigh, rated as 0 percent disabling. His combined total rating was 60 percent. The Veteran has not met the schedular requirements for a TDIU for the period prior to July 1, 2016. As such, the Board will consider whether the Veteran should be referred for extraschedular consideration under 38 C.F.R. § 4.16(b). When the schedular TDIU requirements are not met, as is the case here, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b). In this regard, the Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16 (b). See Wages v. McDonald, 27 Vet. App. 233 (2015). 38 C.F.R. § 4.16 (b) states that "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the" schedular TDIU requirements. Accordingly, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted. On the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he attended one year of college and was otherwise trained as a professional hairdresser, previously owning a cosmetology school and a hair salon. The Veteran submitted statements from his previous employees in support of his claim. They witnessed his inability to stand for prolonged periods of time to attend to customers, to lift his arms to perform hairdressing tasks like checking haircuts, perms, colors, etcetera, and to even sit for prolonged periods at the reception desk. The Board finds these statements credible, as they align with the objective, clinical determinations made at VA examinations throughout the appellate period. VA examiners have consistently observed that the Veteran's service-connected back disability and related radiculopathy impair his ability to sit, stand, or walk for prolonged periods, as well as his ability to reach, bend, stoop, and lift, all necessary actions for the type of work the Veteran has been trained to perform. Thus, the Board finds that, in the present case, there is plausible evidence of record that the Veteran is unable to secure or follow a substantially gainful occupation akin to that which he has been trained to perform due to his service-connected disability. Therefore, the Board finds that a remand for referral for extraschedular consideration of TDIU is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matters are REMANDED for the following action: Refer the Veteran's claim to the Director of Compensation and Pension Service, for consideration of an extra-schedular TDIU award in accordance with 38 C.F.R. § 4.16(b). The Director should note that an extraschedular evaluation under 38 C.F.R. § 4.16(b) requires a determination that a Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. The Veteran's employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. 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.