Citation Nr: 21041004 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 11-32 440 DATE: July 7, 2021 ORDER Prior to April 25, 2016, entitlement to an initial rating of 40 percent for service-connected degenerative disc disease of the lumbar spine (low back disability) is granted. From April 25, 2016, entitlement to an initial rating in excess of 40 percent for service-connected low back disability is denied. Prior to November 30, 2009, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. From November 30, 2009, entitlement to a TDIU is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's low back disability, at the worst, had forward flexion of the thoracolumbar spine at least 30 degrees or less; and no ankylosis. 2. Prior to November 30, 2009, the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. 3. From November 30, 2009, 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. Prior to April 25, 2016, the criteria for an initial rating of 40 percent, but no higher, for a low back disability have 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. From April 25, 2016, the criteria for an initial rating in excess of 40 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. 3. Prior to November 30, 2009, 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). 4. From November 30, 2009, the criteria for a TDIU have been met. 38 U.S.C. §§ 1154(b), 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 March 1977 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a Board hearing. An incomplete transcript of the hearing is of record. In June 2017, the Board advised the Veteran that there was an audio malfunction and as such the record reflects an incomplete transcript of the October 2016 hearing. The Veteran was given another opportunity to appear for a Board hearing. See June 2017 Hearing Request. In June 2017, the Veteran indicated that he wished to have another Board hearing but subsequently withdrew his request for a Board hearing. See June 2017 Hearing Related and June 2017 VA 21-0820 Report of General Information. Accordingly, in April 2020, the Board found that the Veteran's request for another Board hearing is considered withdrawn and no further development is necessary. 38 C.F.R. § 20.702(e). By way of background, in January 2018, the Board dismissed the Veteran's claim for entitlement to service connection for type II diabetes mellitus; granted the Veteran's claim for entitlement to service connection for bilateral neurological disorder of the lower extremities; remanded the issues of entitlement to service connection for bilateral neurological disorder of the upper extremities and entitlement to an increased rating for a low back disability; and found that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). In April 2020, the Board granted the Veteran's claim for entitlement to service connection for neuropathy of the bilateral upper extremities and remanded the issues of entitlement to an increased rating for a low back disability and entitlement to a TDIU. During the appeal process, in a February 2021 rating decision, TDIU was granted effective March 29, 2016. As such, the only issues on appeal are entitlement to an increased rating for a low back disability and entitlement to a TDIU prior to March 29, 2016. 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. Prior to April 25, 2016, entitlement to an initial rating of 40 percent for service-connected low back disability is granted. 2. From April 25, 2016, entitlement to a rating in excess of 40 percent for service-connected low back disability is denied. Here, the Veteran filed a petition to reopen his claim for entitlement to service connection for a low back disability in November 2008. In a December 2009 rating decision, the RO granted the Veteran's petition and granted his claim for entitlement to service connection for a low back disability with a 20 percent rating effective November 14, 2008. Turning to the relevant medical evidence, a review of the Veteran's records show that the Veteran's low back disability is consistent with a 40 percent rating for the entire appeal period. In the March 2008 and September 2008 VA treatment records, the Veteran was noted to have limited flexion and extension of the back. See June 2019 Medical Treatment Record Government Facility and December 2009 CAPRI. However, no range of motion was noted. An October 2008 computerized tomography (CT) scan of the lumbar spine revealed minimal degenerative changes and bilateral mild foraminal narrowing at the L5-S1. See November 2008 Medical Treatment Record Government Facility. In the February 2009 VA treatment record, the Veteran was noted to have a mild antalgic gait. See October 2016 CAPRI. On examination, the Veteran was able to flex to 30 degrees, extend to 10 degrees, side bend to the right to 20 degrees, side bend to the left to 20 degrees, right lateral rotate to 20 degrees, and left lateral rotate to 30 degrees. In a November 2009 VA treatment record, the Veteran had mild tenderness to palpation over the lumbosacral spine but exhibited normal curvature. See December 2009 CAPRI. In the December 2009 VA examination, the Veteran reported having constant severe low back radiating down to the bilateral legs, stiffness, and spasms. He stated that prolonged sitting greater than one-hour, prolonged standing, and lifting would aggravate his low back pain. The Veteran denied having flare ups as his pain stays severe. The Veteran denied having history of hospitalization and surgery. The Veteran also denied having a history of fatigue and weakness but endorsed having spasms and pain in the low back. The Veteran was noted to have an antalgic gait with the use of a cane. On examination the Veteran was able to flex to 50 degrees; extend to 10 degrees; left lateral flex to 15 degrees; left lateral rotate to 15 degrees; right lateral rotate to 15 degrees; right lateral rotate to 15 degrees with evidence of pain on active range of motion. The Veteran had a combined range of motion of 120 degrees. There were no additional limitations after three repetitions. There was no evidence of gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis. There was no ankylosis of the thoracolumbar spine. The Veteran had pain and guarding but not severe enough to be responsible for abnormal gait or abnormal spinal contour. A September 2008 magnetic resonance imaging (MRI) scan of the lumbar spine revealed mild diffuse disc bulge and facet arthropathy producing bilateral foraminal narrowing, right greater than left. In a May 2012 VA treatment record, the Veteran's flexion and extension were limited due to pain. No range of motion was noted. See August 2012 CAPRI. In the April 2016 VA examination, the Veteran denied having flare ups of the thoracolumbar spine. The Veteran claimed that due to his low back pain he has been unable to perform any sort of lifting, pushing, pulling, carrying weight for many years. On examination, the Veteran was able to flex to 20 degrees, extend to zero degrees, right lateral flex to 15 degrees, left lateral flex to 15 degrees, and bilateral lateral rotate to zero degrees with evidence of pain on range of motion. There was 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 not able to perform repetitive use testing with at least three repetitions. The Veteran attempted single movement of each range of motion and stopped with complaint of severe pain. The Veteran was not examined immediately after repetitive use over time and the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner opined that he is unable to say without mere speculation whether the Veteran's pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time as the examiner is unable to assess with so little information. As such, speculation would be the only tool. The Veteran had localized tenderness not resulting in abnormal gait or abnormal spinal contour. However, the Veteran had guarding resulting in abnormal gait or abnormal spinal contour. The examiner noted that the Veteran has less movement than normal due to ankylosis, adhesions, etc. disturbance of locomotion, interference, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran exhibited normal muscle strength, reflexes, and sensation. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have intervertebral disc syndrome (IVDS). In the February 2017 VA examination, the Veteran reported that he does not know why he is back after the April 2016 VA examination as he has no new problems or complaints. The Veteran denied having any flare ups of the thoracolumbar spine. On examination, the Veteran was able to forward flex to 10 degrees, extend to 0 degree, right lateral flex to 10 degrees, left lateral flex to 15 degrees, right lateral rotate to 0 degree, and left lateral rotate to 0 degree with evidence of pain on all range of motion. There was evidence of pain with weight bearing. There was tenderness to palpation over L1 and L5, but no paraspinal tenderness. The Veteran was unable to perform repetitive use testing with at least three repetitions as the Veteran had severe guarding with all attempts. The Veteran was not examined immediately after repetitive use over time and the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation on whether pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use over a period of time. The examiner explained that this assessment would require an assessment by a trained observer over time which is not feasible. The Veteran did not exhibit muscle spasm but did exhibit guarding resulting in abnormal gait or abnormal spinal contour. The Veteran had normal muscle strength, reflexes, and sensation. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine. In a November 2018 VA treatment record, it was noted that the Veteran demonstrated functional range of motion and/or strength of the extremities as he rose from supine. He was able to perform bed mobility and transfer without great assistance. He was able to ambulate inside the room and in the hallway without great assistance of a therapist. See July 2019 CAPRI. In the November 2020 VA examination, the Veteran denied having flare ups of the thoracolumbar spine. The Veteran claimed that he cannot sit or stand for long. He claimed that he is unable to lift anything and that he was told not to do any prolonged sitting, standing, or bending over. On examination, the Veteran was able to forward flex to 30 degrees, extend to 5 degree, right lateral flex to 10 degrees, left lateral flex to 10 degrees, right lateral rotate to 10 degrees, and left lateral rotate to 10 degree with evidence of pain on all range of motion. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was unable to perform repetitive use testing with at least three repetitions as the Veteran claimed too much pain. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, fatigue, weakness, and lack of endurance would significantly limit the Veteran's functional ability with repeated use over a period of time. The examination was not conducted during a flare up and the examiner determined that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare up. The examiner opined that during a flare up the Veteran would able to flex to 25 degrees, extend to 0 degree, right lateral flex to 10 degrees, left lateral flex to 10 degree, right lateral rotate to 10 degrees, and left lateral rotate to 10 degrees. There was no guarding or muscle spasm of the thoracolumbar spine. There was no ankylosis of the spine. There was no evidence of IVDS of the thoracolumbar spine. There was objective evidence of pain when the back was used in non-weight bearing. A passive range of motion for the back cannot be performed and/or is not medically appropriate. Based on the records, the Board finds the Veteran's low back disability is consistent with a 40 percent disabling rating as the records show that at the worst the Veteran had a forward flexion of at least 30 degrees or less. The Board notes that in a February 2009 VA treatment record, the Veteran was able to flex to 30 degrees but then in a December 2009 VA examination the Veteran was able to flex to 50 degrees. The Board acknowledges that pain can wax and wane in severity. As such, in the light most favorable to the Veteran, the Board finds that at the worst the Veteran had a forward flexion of at least 30 degrees or less. The Veteran is not entitled to a higher disabling rating of 50 percent or 100 percent as the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Accordingly, the Board finds that the Veteran's low back disability is consistent with a 40 percent disability rating for the entire appeal period. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. As for Diagnostic Code 5243 (IVDS), as noted above, the Veteran does not have IVDS or disc herniation with compression. As such, the Veteran cannot avail to a higher rating based on Diagnostic Code 5243 prior to and 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). A request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part of the claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. 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). 3. Prior to November 30, 2009, entitlement to a TDIU is denied. 4. From November 30, 2009, entitlement to a TDIU is granted. By way of background, in the January 2018 Board decision, the Board found that the issue of entitlement to a TDIU was raised by the record. As such, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for entitlement to a TDIU was considered part and parcel to the increased rating claim for a low back disability, which was granted with an effective date of November 14, 2008. The Board notes that the Veteran is service connected for sleep apnea rated at 50 percent, effective June 21, 2019; low back disability rated at 40 percent, effective November 14, 2008; peripheral neuropathy of the right upper extremity rated at 30 percent, effective November 30, 2009; peripheral neuropathy of the left upper extremity rated at 20 percent, effective November 30, 2009; degenerative arthrosis of cervical spine rated at 20 percent effective October 5, 2012; radiculopathy of the right lower extremity rated at 10 percent, effective November 14, 2008; radiculopathy of the left lower extremity rated at 10 percent, effective November 14, 2008; left ankle lateral collateral ligament sprain rated at 10 percent, effective March 29, 2016; gastroesophageal reflux disease (GERD) rated at 10 percent, effective March 29, 2016; and pseudofolliculitis barbae rated at noncompensable rating, effective March 29, 2016. The Veteran has a combined evaluation of 50 percent from November 14, 2008 and 80 percent effective November 30, 2009. Accordingly, the Veteran met the schedular criteria effective November 30, 2009. Prior to November 30, 2009, 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 September 2020 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He has special training and/or education in missile training and laundry specialist. The Veteran's past work history consists of being a machine operator. The Veteran stated that his service-connected low back pain and neck pain prevents him from securing or following any substantially gainful occupation. Prior to November 30, 2009, the Veteran was service connected for a low back disability and radiculopathy of the bilateral lower extremities. A review of the records shows that in a September 2008 VA treatment record the Veteran complained of radiculopathy and "new numbness" in the right buttock right leg distribution within the last 24 hours with no trauma. See October 2008 Medical Treatment Record Government Facility. A September 2008 MRI scan revealed mild diffuse discogenic and facet degenerative changes. In a February 2009 VA physical therapy record, the Veteran was able to flex to 30 degrees. See October 2016 CAPRI. However, the Veteran stated that he joined a fitness gym and reported that his low back pain was eased by doing exercises. Based on the foregoing, the Board concludes that the most probative evidence does not show that the Veteran was precluded from gainful employment prior to November 30, 2009 due to his low back disability and radiculopathy of the bilateral lower extremities. The evidence reflects that the Veteran would have some limitation due to his low back disability and radiculopathy of the bilateral lower extremities. 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, the Veteran joined a fitness gym and reported that his low back pain was eased by doing exercises. As there is no evidence that the Veteran's low back disability and radiculopathy of the bilateral lower extremities would preclude the Veteran from working, the Board finds that the Veteran was capable of performing work that involved more limited walking, standing, and lifting. 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 November 30, 2009, the Board finds that the Veteran is entitled to a TDIU as the Veteran's low back disability, moderate peripheral neuropathy of the bilateral upper extremities, and radiculopathy of the bilateral lower extremities would preclude the Veteran from securing and maintaining a substantial gainful employment. Concerning the Veteran's neurological disorder, the September 2012 VA examiner opined that the Veteran's peripheral nerve condition would not impact the Veteran's ability to work. However, the March 2018 VA examiner opined that due to the Veteran's peripheral nerve condition he is unable to do repetitive work with his hands. Additionally, the August 2019 VA examiner opined that due to the Veteran's peripheral nerve condition he is impaired from prolonged walking. Based on the foregoing, the Board finds that the Veteran would be limited in the use of his bilateral arms and legs. Moreover, the Veteran would no longer be able to perform jobs that that is primarily related to the use of his bilateral upper extremities. Accordingly, the Board finds that the Veteran is not capable of performing the physical acts required for employment and thus grants the Veteran's claim for entitlement to a TDIU from November 30, 2009. The Board also 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 a psychiatric disability prior to May 3, 2021. 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 November 30, 2009. From November 30, 2009, 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 November 30, 2009. 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.