Citation Nr: 21040983 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-27 617 DATE: July 7, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected low back disability is denied. Prior to June 1, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. From June 1, 2014, entitlement to a TDIU is granted. FINDINGS OF FACT 1. The Veteran's low back disability had a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; and has exhibited no evidence of scoliosis, reversed lordosis, abnormal kyphosis, or ankylosis. 2. Prior to June 1, 2014, the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. 3. From June 1, 2014, the schedular requirements for TDIU have been met, and his service-connected disabilities render him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Prior to June 1, 2014, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). 3. From June 1, 2014, the criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.15, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1976 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a videoconference hearing. The transcript of the hearing is of record. By way of background, in February 2019, the Board remanded the issues on appeal to include a claim for entitlement to service connection for bilateral hip disability. During the appeal process, in a July 2020 rating decision, the RO granted service connection for bilateral hip disability. As such, the only issues remaining before the Board are entitlement to an increased rating for service-connected low back disability and entitlement to a TDIU. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. 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. See 38 C.F.R. § 4.40; 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. 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. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Effective February 7, 2021, Diagnostic Code 5242 was changed to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010). Additionally, Diagnostic Code 5243 was changed to intervertebral disc syndrome with a note to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and to assign diagnostic code 5242 for all other disc diagnoses. The General Formula was unchanged from the revised version. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. An alternative Formula for Rating is available for intravertebral disc syndrome (IVDS), based upon incapacitating episodes. Prior to the February 2021 regulatory change, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 1. Entitlement to a rating in excess of 20 percent for service-connected low back disability is denied. As an initial matter, the Veteran filed his claim for entitlement to an increased rating for his service-connected low back disability in August 2012. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran's low back disability is consistent with no higher than a 20 percent disabling rating. A review of the records shows that the Veteran was afforded VA examinations in May 2012, May 2013, June 2013, May 2015, and October 2019. In the May 2012 VA examination, the Veteran complained of having constant dull aching pain in his lower back with associated stiffness and spasm. He also stated that he received steroid epidural injections every four months with good results for the first two months. He reported that he can no longer run, exercise, play softball, or go bowling. He requires a wheeled walker or use of an electric scooter for ambulation. During flare ups, he claimed that he has decreased range of motion and inability to perform usual activities. The examiner diagnosed the Veteran with mechanical low back strain with lumbar facet cyst of the L4-L5. On examination, the Veteran had a forward flexion to 55 degrees with evidence of pain at 10 degrees; extension to 20 degrees with evidence of pain at 5 degrees; left lateral flexion to 15 degrees with evidence of pain at 5 degrees; right lateral flexion to 15 degrees with evidence of pain at 5 degrees; left lateral rotation to 20 degrees with evidence of pain at 10 degrees; and right lateral rotation to 20 degrees with evidence of pain at 10 degrees. The combined range of motion of the thoracolumbar spine was 145 degrees. The Veteran was able to perform repetitive use testing with three repetitions. On examination, the Veteran had a forward flexion to 40 degrees; extension to 10 degrees; left lateral flexion to 15 degrees; right lateral flexion to 15 degrees; left lateral rotation to 20 degrees; and right lateral rotation to 20 degrees. The combined range of motion of the thoracolumbar spine was 120 degrees. The Veteran has additional limitation in range of motion and functional loss of the thoracolumbar spine following repetitive use testing as the Veteran had less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran had guarding and/or muscle spasm that did not result in abnormal gait or spinal contour. The Veteran exhibited moderate radiculopathy of the left lower extremity. The Veteran did not exhibit any intervertebral disc syndrome (IVDS). The Veteran reported that he constantly uses his walker and regularly uses an electric scooter. A May 2012 VA treatment record shows the Veteran had an unsteady gait and that he could only walk a maximum of 100 yards before pain would make him stop. See August 2012 CAPRI. In an October 2012 VA treatment record, the Veteran was noted to have severely decreased flexion with provocation of radicular left lower extremity, and severely decreased (nearly absent) extension. See August 2013 CAPRI. In a November 2012 VA treatment record, the Veteran stated that his walking was better due to his physical therapy treatment. In a March 2013 VA treatment record, the Veteran stated that he is able to walk up a flight of stairs without any difficulties but when walking he requires a break every 50 feet. See August 2013 CAPRI records. In an April 2013 VA private treatment record, it was noted that the Veteran underwent a left total hip arthroplasty for left hip severe degenerative joint disease. See April 2013 Medical Treatment Record Non-Government Facility. In the May 2013 VA examination, the Veteran reported that he has a cyst wrapped around his neural foramina and he was told by two neurosurgeons not to have surgery as it may cause irreputable damage. He stated that he receives epidural shots for pain every four months. He claimed that he can only stand for two minutes and pain is constant at a three or four when sitting. The Veteran denied having any flare ups of the thoracolumbar spine. The examiner noted that the Veteran cannot currently put any large amounts of weight bearing on his left hip/leg to stand for repeated range of motion of his low back as he just had hip replacement four weeks ago. The Veteran was worried he may get off balance and fall as he would have to perform range of motion with his right leg only. Therefore, due to safety and per the Veteran's request, no range of motion of the low back was performed. The Veteran experienced mild radiculopathy of the left lower extremity. He had IVDS of the thoracolumbar spine but with no incapacitating episodes over the past 12 months. The Veteran stated that he uses a wheelchair and walker on an occasional basis. In the June 2013 VA examination, the Veteran stated that he uses a walker for walking long distances and he has progressed to using a wheelchair after his total hip arthroplasty. He endorsed having flare ups of his thoracolumbar spine. Specifically, he stated that he has 'good days and bad days' regarding his back pain. He states that he is placing quite a bit of stress on his back if he uses a walker and often uses a wheelchair for mobility. On examination, the Veteran had a forward flexion to 45 degrees with evidence of pain at 10 degrees; extension to 20 degrees with evidence of pain at 5 degrees; left lateral flexion to 15 degrees with evidence of pain at 5 degrees; right lateral flexion to 15 degrees with evidence of pain at 5 degrees; left lateral rotation to 15 degrees with evidence of pain at 5 degrees; and right lateral rotation to 15 degrees with evidence of pain at 5 degrees. The combined range of motion of the thoracolumbar spine was 125 degrees. The Veteran was able to perform repetitive use testing with three repetitions. On examination, the Veteran had a forward flexion to 35 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. The combined range of motion of the thoracolumbar spine was 110 degrees. The Veteran has additional limitation in range of motion and functional loss of the thoracolumbar spine following repetitive use testing as the Veteran had less movement than normal, weakened movement, pain on movement, and disturbance of locomotion. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran did not exhibit guarding and/or muscle spasm of the thoracolumbar spine. The Veteran exhibited moderate radiculopathy of the left lower extremity. The Veteran did not exhibit any intervertebral disc syndrome (IVDS). The Veteran reported that he regularly uses his walker and occasionally uses a wheelchair. A July 2013 computerized tomography (CT) scan of the lumbar spine showed wear and tear arthritis and narrowings in certain areas. See August 2013 CAPRI. In an April 2014 VA treatment record, the Veteran stated that he was back to "full activities" and he even started golfing again. Additionally, he stated that he has no problems with climbing stairs. See May 2015 CAPRI. In a May 2014 VA treatment record, the Veteran stated that his activity is very limited, but he is able to walk short distances without pain. See December 2014 CAPRI. In a June 2014 VA treatment record, he reported that he was doing more yardwork around the house but no formal exercise regimen. In an August 2014 VA treatment record, he stated that he was getting more activity such as working out in the yard and garage. In the May 2015 VA examination, the Veteran stated that he received epidural shots and takes hydrocodone about four times per day. He stated that he is unable to drive, run, bike, or bowl. However, he is able to swim but not rigorously. The Veteran stated that during a flare up he has pain when walking and bending. The Veteran claimed that his range of motion is better today as he received an epidural shot in April 2015. On examination, the Veteran had a 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 30 degrees; and right lateral rotation to 30 degrees with evidence of pain on all motions except during rotation. The combined range of motion of the thoracolumbar spine was 150 degrees. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare up and as such and the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner determined that he cannot state without mere speculation that the Veteran's pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use over a period of time. The Veteran had guarding, muscle spasm, and localized tenderness resulting in abnormal gait or abnormal spinal contour. He exhibited moderate radiculopathy of the left lower extremity. There was no evidence of ankylosis of the spine. There was no evidence of IVDS of the thoracolumbar spine. The Veteran stated that he regularly uses the wheelchair and walker. In an August 2017 VA treatment record, the Veteran denied having any significant pain in his thoracic or lumbar spine. See November 2017 CAPRI. In a November 2018 VA treatment record the Veteran stated he stays active during the day with yard work or work around the house without the use of a scooter. See September 2019 CAPRI. A March 2019 x-ray scan of the low back revealed grade 1 spondylolisthesis of the L4 on L5 that has shown some progression since December 2013 with no evidence of fracture and no degenerative changes throughout the lumbar spine. See September 2019 CAPRI. In the October 2019 VA examination, the Veteran was diagnosed with degenerative arthritis and IVDS of the thoracolumbar spine. The Veteran endorsed having flare ups every time he moves and of sharp stabbing pain that is like 'getting jabbed with a needle.' The Veteran has difficulty standing and walking and he cannot squat or bend over. On examination, the Veteran had a forward flexion to 40 degrees; extension to 10 degrees; left lateral flexion to 15 degrees; right lateral flexion to 5 degrees; left lateral rotation to 15 degrees; and right lateral rotation to 15 degrees with evidence of pain on all motions. The combined range of motion of the thoracolumbar spine was 100 degrees. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare up. The examiner determined that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare ups. The examiner stated that pain, weakness, fatigability, or incoordination would not significantly limit the Veteran's functional ability with repeated use over a period of time or during flare ups. The examiner explained that after a review of the records and giving consideration to the Veteran's subjective complaints and objective exam findings, and given his clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional loss of function or motion when it comes to repeated use over time or during flare ups. The Veteran had muscle spasm and guarding not resulting in abnormal gait or abnormal spinal contour. He exhibited moderate radiculopathy of the left lower extremity. There was no ankylosis of the spine. There was no IVDS. He endorsed a regular use of the wheelchair and constant use of his walker. Passive range of motion of the spine was not performed as it was not feasible to do this in a safe and reasonable manner. Non-weight bearing assessment was not applicable. There was no objective evidence of pain when the spine was in a non-weight bearing position at rest. Opposing joint assessment is not applicable because the spine does not have an opposing joint. The examiner noted that a new diagnosis of degenerative arthritis of the spine and IVDS was added based on the Veteran's radicular symptoms and an MRI scan of the thoracolumbar spine. Based on the records, the Board finds the Veteran's low back disability is consistent with a 20 percent rating. The records show that, at the worst, the Veteran had a forward flexion of 40 degrees with a combined range of motion of the thoracolumbar spine of 100 degrees. Additionally, there was no favorable ankylosis of the entire thoracolumbar spine. As the Veteran exhibited a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the Veteran is entitled to a 20 percent rating based on Diagnostic Code 5242. The Veteran is not entitled to a 40 percent rating as the Veteran did not have a forward flexion of the thoracolumbar spine of 30 degrees or less. Accordingly, the Board finds that the Veteran's low back disability is consistent with a 20 percent disability rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. The Board notes that although the Veteran had IVDS of the thoracolumbar spine the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Additionally, there was no favorable ankylosis of the entire thoracolumbar spine. As for Diagnostic Code 5243 after the regulatory change, the Veteran had to show that he has a disc herniation with compression and/or irritation of the adjacent nerve root. Here, the records show that the Veteran does not have a disc herniation with compression as evidenced by the March 2019 x-ray scan of the lumbar spine that revealed grade 1 spondylolisthesis of the L4 on L5 that has shown some progression since December 2013, no evidence of a fracture, and no degenerative changes throughout the lumbar spine. No compression or irritation of an adjacent nerve root was noted. As such, the Veteran is not entitled to a higher rating under Diagnostic Code 5243 after the regulation change. TDIU 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). See Johnson v. McDonald, 762 F.3d 1362 (2014). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 2. Prior to June 1, 2014, entitlement to a TDIU is denied. 3. From June 1, 2014, entitlement to a TDIU is granted. The Veteran filed a claim for entitlement to an increased rating of his service-connected low back disability in August 2012. In January 2013, the Veteran filed his claim for entitlement to a TDIU. The Board notes that the Veteran is service connected for a degenerative joint disease of the left hip (left hip disability) rated at 10 percent effective August 29, 2012, 100 percent effective April 10, 2013, and 50 percent effective June 1, 2014; degenerative joint disease of the right hip (right hip disability) rated at 10 percent effective August 29, 2012, 100 percent effective October 3, 2019, and 30 percent effective December 1, 2020; mood disorder at noncompensable rating effective August 29, 2012 and 30 percent effective July 16, 2018; radiculopathy of the left lower extremity rated at 20 percent effective June 16, 2009; a low back disability rated at 10 percent effective March 28, 2007 and 20 percent effective May 8, 2012; tinnitus rated at 10 percent effective March 28, 2007; and surgical scar of the bilateral hip rated at noncompensable rating effective April 10, 2013 for the left hip and October 3, 2019 for the right hip. The Veteran has a combined evaluation of 60 percent from August 29, 2012, 100 percent from April 10, 2013, 80 percent from June 1, 2014, 90 percent from July 16, 2018, 100 percent from October 3, 2019, and 90 percent from December 1, 2020. Accordingly, the Veteran met the schedular criteria effective June 1, 2014. Prior to June 1, 2014, but excluding the period from April 10, 2013 to June 1, 2014 where he was rated 100 percent, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. A review of the records shows that the Veteran has a general education diploma (GED). See January 2015 Education General. The Veteran's past work history consists of being a business owner and superintendent. The Veteran stated that his service-connected low back disability, bilateral hip disability, and nerve disability prevents him from securing or following any substantially gainful occupation. Regarding the Veteran's low back disability, the May 2012 examiner opined that the Veteran would have limited range of motion; and would be limited in his ability to walk, stand, and sit. The examiner determined that considering the Veteran's limited functional capacity with the need for chronic narcotic pain management would severely impact the Veteran's employability. The May 2013 examiner opined that the Veteran's low back disability would not impact the Veteran's ability to work. However, the June 2013 examiner opined that the Veteran's low back disability would impact his ability to work. Specifically, the examiner stated that the Veteran is a contractor and has been unable to perform his profession secondary to his low back pain and inability to lift heavy objects. His low back pain limits his ability to climb ladders or any other such activity. The May 2015 examiner opined that the Veteran's low back disability would impact his ability to work as the Veteran reported that he is unable to be on his feet for prolonged periods. The October 2019 examiner opined that the Veteran's low back disability would impact his ability to work as the Veteran cannot stand or walk for extended periods of time and that he may lose up to one week of work time in the last 12 months due to his low back disability. As for the Veteran's bilateral hip disability, the May 2013 examiner opined that the Veteran's bilateral hip disability would not impact his ability to work. However, the June 2013 examiner opined that the Veteran's bilateral hip disability would impact his ability to work. The examiner noted that the Veteran is currently in the rehabilitation stage after a left total hip arthroplasty. As such, the Veteran will be limited in the positions that he can get into with his left total hip. The October 2019 examiner opined that the Veteran cannot stand or walk for extended periods of time due to bilateral hip replacement and that the Veteran would lose up to one week of work in 12 months due to his bilateral hip disability. In a December 2012 memorandum, a rehabilitation counselor opined that the Veteran is not feasible for employment at this time. See July 2015 Medical Treatment Record Government Facility. The rehabilitation counselor felt that the Veteran's disabilities made it unreasonable to expect that he could use VA to obtain and maintain competitive employment at this time. The Board affords little probative value to the rehabilitation counselor's assessment as the counselor did not provide any substantive rationale for his determination. In a February 2014 correspondence, Dr. Soares opined that the Veteran's low back disability is more appropriately diagnosed as post-traumatic lumbar spondylosis with lumbar facet arthropathy and lumbar facet synovial cyst. See May 2015 Medical Treatment Record Non-Government Facility. Dr. Soares opined that the Veteran is currently unable to continue his previous line of work as a contractor/construction laborer. He is currently unable to secure or maintain employment in this area. Dr. Soares opined that the Veteran is not capable of more than sedentary work. The Veteran is limited from lifting more than 10 pounds occasionally or stand or walk for more than two hours in an eight-hour work shift. Further, as the Veteran routinely uses a walker for short distance ambulation job accommodations would be necessary. Based on the foregoing, the Board concludes that the most probative evidence does not show that the Veteran is precluded from gainful employment prior to June 1, 2014 due to his service-connected disabilities. The evidence reflects that the Veteran would have some limitation due to his mood disorder, tinnitus, low back disability, bilateral hip disability, and radiculopathy of the left lower extremity. However, the most persuasive evidence reflects that he could still perform tasks that did not involve frequent ambulation as long as he had a sit/stand option. As noted above, despite the limitation in range of motion, in April 2014 the Veteran stated that he was back to "full activities" and was golfing again with no problems. The records also show that the Veteran stated that he was busy with yardwork around the house. Moreover, even the February 2014 medical opinion from Dr. Soares stated that the Veteran is capable of sedentary work, such as lifting up to 10 pounds occasionally and stand or walk no more than two hours in an eight-hour work shift. As there is no evidence that the Veteran's service-connected disabilities precluded the Veteran from working, the Board finds that the Veteran was capable of performing work that involved limited lifting, a sit stand option, and limited walking. Given the foregoing, the Board finds that the preponderance of evidence weighs against a finding that the Veteran meets the requirements for entitlement to a referral of his TDIU claim for consideration on an extraschedular basis. Accordingly, the Board declines to remand the claim for referral to the Director of VA Compensation Service for consideration of TDIU on an extraschedular basis. From June 1, 2014, the Board finds that the Veteran is entitled to a TDIU as the Veteran's service-connected disabilities worsened and as such would likely preclude the Veteran from securing and maintaining a substantial gainful employment. Specifically, in April 2013 the Veteran underwent a total left hip replacement. The Veteran's left hip disability was rated at 50 percent effective June 1, 2014 based on moderately severe residuals of weakness, pain, or limitation of motion. The Board acknowledges the Social Security Administration (SSA) decision wherein the SSA determined that the Veteran's disabilities preclude the Veteran from performing a substantial gainful occupation. The Board gives little probative weight to the SSA decision as the decision is based on service-connected disabilities and non-service-connected disabilities, such as gout. The Board cannot consider the impact of the non-service-connected disabilities on his employment. In conclusion, the Board finds that the preponderance of evidence weighs against a finding that the Veteran is precluded from securing and performing substantial gainful employment prior to June 1, 2014. From June 1, 2014, the Board finds that the Veteran is likely not capable of performing the physical acts required for employment and thus grants the Veteran's claim for entitlement to a TDIU from June 1, 2014. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, Associate 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.