Citation Nr: 22013432 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-05 001 DATE: March 9, 2022 ORDER Entitlement to a 40 percent evaluation for service-connected lumbar myositis for the period prior to June 7, 2019, is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) for the period from January 1, 2015 to September 12, 2016 is granted. FINDINGS OF FACT 1. For the period prior to June 7, 2019, the Veteran's lumbar spine disability was manifested by pain and limitation of motion, but not by incapacitating episodes or unfavorable ankylosis of the thoracolumbar spine. 2. With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that his service-connected disabilities render him unable to secure and follow substantially gainful employment for the period from January 1, 2015 to September 12, 2016. CONCLUSIONS OF LAW 1. For the period prior to June 7, 2019, the criteria for a 40 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2020). 2. The criteria for a TDIU for the period from January 1, 2015 to September 12, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from June 1989 to October 1989 from February 2003 to May 2003 and from July 2006 to November 2007 with service in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions in July 2011 and February 2012 from the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. The Board remanded this issue in June 2018. In July 2020, the Board, in part denied the issue of entitlement to a disability rating in excess of 20 percent for a lumbar spine disability for the period prior to June 7, 2019. The Veteran subsequently appealed the July 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's July 2020 decision regarding the denial of entitlement to a disability rating in excess of 20 percent for a lumbar spine disability for the period prior to June 7, 2019 and remanded the appeal to the Board for readjudication consistent with the JMR. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his lumbar spine disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). For the period prior to June 7, 2019, the Veteran has a 20 percent disability rating for his lumbar spine disability under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assignable for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is assignable for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees. A 30 percent rating is assignable for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assignable for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) 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 evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). Factual Background and Analysis The Veteran filed a claim for an increased rating that was received by VA in July 2010. The Veteran contends that his lumbar myositis is characterized by reduced range of motion and ongoing pain and that an increased rating is warranted. The Veteran is competent to testify to such lay observable symptomology and these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his lumbar myositis disability during this period. A June 2011 VA examination noted forward flexion to 80 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 20 degrees. The Veteran reported ongoing back pain which impacts his sleep and driving. Flare ups were noted every 1 to 2 days often after driving and completing chores and are alleviated with medication and massage. Ankylosis was not documented. The examiner documented incapacitating episodes due to IVDS, totalling two weeks over the past 12-month period. An October 2012 VA examination noted flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, left lateral rotation to 20 degrees. Ankylosis was not documented. IVDS was not observed. The Veteran underwent a VA examination in February 2015. The examiner noted forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Pain was noted on the exam but does not result in/cause functional loss. The Veteran reported constant daily pain with flare ups when walking and climbing stairs. There were no additional limitations or evidence of pain on weight bearing. Repetitive use testing noted an additional loss of function or range of motion with forward flexion to 40 degrees, extension to 10 degrees and right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees and left lateral rotation to 10 degrees. There was no evidence of ankylosis. Muscle spasms were noted resulting in abnormal gait or abnormal spinal contour. Flare-ups were documented, but the examiner declined to express the functional limitations of flare-ups in terms of range of motion, as the examiner opined it would be "speculative" to do so. Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment and flare-ups at his June 2011, October 2012 and February 2015 VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, a 40 percent rating is warranted for the Veteran's service-connected lumbar spine disability for the period prior to June 7, 2019. Turning to the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020). As shown above, prior to June 7, 2019, the Veteran's lumbar spine disability was manifested by no worse than forward flexion to 50 degrees, and 40 degrees with repetitive use; and muscle spasm resulting in abnormal gait or spinal contour. However, as noted by the Parties in the April 2021 JMPR, the February 2015 VA examination also indicated that the Veteran reported flare-ups that occurred daily with walking more than 75 yards and climbing one flight of stairs which were not relieved with medication. Notably, the examiner could not provide additional functional loss estimates with repetitive use over time or during flare-ups without resorting to speculation. The examiner did state that "pain could significantly limit functional ability" during flare-ups or repeated use but any estimate would be speculative without direct observation during a flare-up or after repeated use over time. As noted by the April 2021 JMPR, this examination is inadequate as it did not clarify that this inability was a limitation of the medical community and filed to elicit information from the Veteran to provide the estimates. Regardless of the noted inadequacies of the February 2015 VA examination, the Board again notes that the Veteran reported daily flare-ups which were not relieved by medication. Additionally, at is June 2011 VA examination, the Veteran reported ongoing back pain which impacts his sleep and driving with flare ups noted every 1 to 2 days often after driving and completing chores. As a result, based on the reported symptomatology of the Veteran's reported functional impairment and flare-ups at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that an initial 40 percent rating is warranted for the Veteran's service-connected lumbar spine disability. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher evaluation more than 40 percent. Initially, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As noted by the June 2011 VA examiner, the Veteran had a diagnosis of intervertebral disc syndrome but the incapacitating episodes due to IVDS only totaled 2 weeks over the past 12-month period. Therefore, a higher rating based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). Turning to the orthopedic manifestations, in order for the Veteran to be awarded a disability rating higher than 40 percent under the general spine formula, the evidence must show the presence of spinal ankylosis. As discussed in detail above, the evidence fails to demonstrate unfavorable ankylosis of the entire thoracolumbar spine to obtain a higher evaluation. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2020). In that regard, the evidence simply does not show any ankylosis of the lumbar spine. In fact, the documented range of motion findings do not demonstrate that the joint was immobile or fixed in place. As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that a rating in excess of 40 percent is not warranted for his orthopedic findings. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. However, as noted by the April 2021 JMPR, in July 2020 the Board denied entitlement to service connection for radiculopathy of the right and left lower extremities which the Veteran did not challenge. Accordingly, the Board finds that the evidence supports the assignment of a 40 percent rating for a lumbar spine disability for the period prior to June 7, 2019. However, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 40 percent. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020). TDIU Laws and Regulations Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2019). Total disability ratings for compensation 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2020). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). Analysis As noted by the April 2021, the Board in its July 2020 failed to adjudicate a claim for entitlement to a TDIU for which it had proper jurisdiction. The Veteran again filed a claim for an increased rating for his lumbar spine disability that was received by VA in July 2010. When a Veteran submits evidence of unemployability in association with a claim for an increased rating, a claim for TDIU benefits is inferred. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, there is evidence that the Veteran's service-connected peripheral neuropathy disabilities contributed to the Veteran's perceived individual unemployability. As a result, the Board finds that per Rice, the Veteran had an inferred claim for a TDIU since July 2010 which is the date of his increased rating claim for his lumbar spine disability. Notably, a January 2017 rating decision granted entitlement to a TDIU, effective September 12, 2016. As a result, the issue before the Board is entitlement to a TDIU for the period from July 2, 2010 to September 12, 2016. For the period prior to February 29, 2016, the Veteran's service-connected disabilities consisted of depressive disorder (rated at 50 percent), a lumbar spine disability (rated at 40 percent), migraine headaches (rated at 30 percent), a right knee disability (rated at 10 percent), a left knee disability (rated at 10 percent), high blood pressure (rated at 10 percent), onychomycosis of the feet (rated at 0 percent), and erectile dysfunction (rated at 0 percent). This results in the combined 90 percent disability rating. For the period from March 1, 2016 to September 11, 2016, the Veteran's service-connected disabilities consisted of depressive disorder (rated at 50 percent), sleep apnea (rated at 50 percent), a lumbar spine disability (rated at 40 percent), migraine headaches (rated at 30 percent), a right knee disability (rated at 10 percent), a left knee disability (rated at 10 percent), high blood pressure (rated at 10 percent), onychomycosis of the feet (rated at 0 percent), and erectile dysfunction (rated at 0 percent). This results in the combined 90 percent disability rating. Having met the objective criteria for a TDIU, the remaining question before the Board is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. § 3.321, 3.340, 3.341, 4.16. Here, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). After careful consideration and resolving reasonable doubt in his favor, the Board finds that the Veteran meets the requirements for a total disability evaluation based on individual unemployability due to service-connected disorders for the period from January 1, 2015 to September 11, 2016. The record shows that the Veteran previously worked as a training representative. Notably, in a December 2021 correspondence, a vocational consultant opined that it was at least as likely as not that the Veteran's service-connected disabilities rendered him unable to secure and follow substantial gainful employment, regardless of skill or exertional level since January 2015. The consultant noted that the Veteran last engaged in substantially gainful activity in 2014 with marginal earnings in 2015. The Veteran also reported that he had last worked in January 2015 where he was granted a year of leave due to his service-connected disabilities but was unable to return to work after January 2015. The record also demonstrates that the Veteran's ability to work has been impacted by his service-connected psychiatric disability as he has notable occupational impairment from his psychiatric impairments as demonstrated by his current 50 percent disability rating for his service-connected depressive disorder. For these reasons, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran's service-connected disabilities render him incapable of securing or maintaining substantially gainful employment for the period prior from January 1, 2015 to September 11, 2016. The Board again notes that the Veteran had an inferred claim for a TDIU since July 2010 which is the date of his increased rating claim for his lumbar spine disability. However, a grant of entitlement to TDIU for the period prior to January 1, 2015 is not warranted. As noted above the evidence clearly reveals that the Veteran had significant service-connected disabilities which impacted his work for the period prior to January 1, 2015. However, this evidence must be weighed against the fact that the Veteran was still able to maintain gainful employment despite restrictions as a result of his service-connected disabilities for the period prior to January 1, 2015. While the Board is sympathetic for the restrictions that encompassed his service-connected disabilities, the evidence clearly demonstrates that the Veteran's service-connected disabilities did not preclude all forms of employment as again, the Veteran was still employed at a full-time position for the period prior to January 1, 2015. As a result, when affording the Veteran the benefit of the doubt, the Board finds that entitlement to TDIU for the period prior from January 1, 2015 to September 11, 2016 is warranted. A remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In weighing the evidence, the Board finds that the evidence of record establishes that the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. Accordingly, the Board finds that entitlement to total disability evaluation based on individual unemployability due to service- connected disorders for the period prior from January 1, 2015 to September 11, 2016 is warranted. See 38 C.F.R. §§ 3.102, 4.16(a). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.