Citation Nr: 22018489 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 15-07 428 DATE: March 29, 2022 ORDER Entitlement to a 40 percent but no higher rating for lumbar degenerative disc disease, status-post L3-4 fusion, from March 29, 2009 to May 6, 2014 is granted. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD), status-post L3-4 fusion, since May 6, 2014, is denied. Entitlement to a rating in excess of 10 percent for low back scar under Diagnostic Code (Code) 7801 is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From March 29, 2009, with consideration of functional loss on flare-ups and possible ameliorative effects of medication, the Veteran's lumbar spine disability is reasonably shown to have been manifested by impairment compatible with limitation of flexion to 30 degrees or less; impairment compatible with lumbar spine ankylosis has not been shown. 2. The Veteran's low back scar was deep and non-linear and measured at least 39 square centimeters (cm) but less than 77 square cm. 3. The Veteran's combination of service-connected disabilities has met the schedular criteria for TDIU and have been reasonably shown to render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From March 29, 2009 to May 6, 2014, the criteria for a 40 percent but no higher disability rating for lumbar spine degenerative disc disease (DDD), status-post L3-4 fusion, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. From May 6, 2014, the criteria for a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD), status-post L3-4 fusion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. The criteria for a disability rating in excess of 10 percent for low back scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (Code) 7801. 4. The criteria for s total disability rating for compensation based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1998 to January 2005, including combat service in Iraq and Afghanistan. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a VA Regional Office (RO), which, in pertinent part, increased the rating for the service-connected lumbar DDD status post fusion at L3-4 disability from 10 percent to 20 percent effective March 29, 2010 and granted service connection for residual lumbar spine scar with a rating of 0 percent effective March 29, 2010. A subsequent rating decision in February 2015 granted an increased rating for the lumbar spine to 40 percent, effective May 6, 2014, as well as an increased rating for the scar to 10 percent, effective May 6, 2014. The February 2015 rating decision also granted service connection for radiculopathy of the right and lower extremity and assigned initial ratings. Although these conditions were service connected as associated with the lumbar spine disability, the Veteran did not disagree with or otherwise appeal the initial ratings of these separately service-connected disabilities. Thus, these conditions are not on appeal before the Board. In January 2019, the Veteran testified at a hearing. A transcript of the hearing is of record. In July 2020, the Board notified the Veteran that the judge that had presided over his January 2019 hearing was no longer with the Board and offered the Veteran another hearing. In correspondence received by the Board a couple of weeks later, the Veteran stated that he did not want another Board Hearing. Thereafter, in a June 2019 decision, the Board, in pertinent part, denied an increased rating of the lumbar spine greater than 10 percent prior to March 29, 2010 and greater than 20 percent from March 29, 2010, to May 5, 2014, and remanded the issue of whether an increased rating of the lumbar spine greater than 40 percent was warranted from May 6, 2014. In that decision, the Board also denied a compensable rating for the Veteran's scar prior to April 27, 2011, granted a rating of 10 percent from April 27, 2011 to May 6, 2014, and remanded the issue of whether any further increase greater than 10 percent was warranted for the scar from May 6, 2014. In addition, the Board remanded the issue of a total disability rating based on individual unemployability (TDIU). The Veteran appealed the Board's June 2019 denial of higher lumbar spine and scar ratings to the Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued an Order granting a May 2020 Joint Motion for Partial Remand (joint motion) vacating and remanding the following specific issues back to the Board for further consideration: (1) a disability rating higher than 10% for lumbar spine disability prior to March 29, 2010; (2) a disability rating higher than 20% for the disability, from March 29, 2010, to May 6, 2014; and (3) a compensable rating for a low back scar under Diagnostic Code (Code) 7801 prior to May 6, 2014. The joint motion made clear that in regard to the scar rating, the remand was limited to consideration of the one diagnostic code (Code 7801) and the portion of the June 2019 Board decision that denied the Veteran's low back scar increased rating should not be disturbed insofar as the Board had already considered a higher rating under Code 7804. In a November 2020 decision, the Board denied a rating in excess of 10 percent for the low back scar from May 6, 2014 and remanded the issue of entitlement to a compensable rating for the scar prior to May 6, 2014. In actuality, a compensable rating of 10 percent had already been assigned for the scar effective April 27, 2011 in a January 2020 rating decision. The Board also remanded the claims for increase for the service-connected low back disability and the claim for TDIU. In an April 2021 rating decision, the agency of original jurisdiction granted an earlier effective date of March 29, 2010 for the 10 percent rating for low back scar under Diagnostic Code 7801. A separate 10 percent rating under Diagnostic Code 7804 is in effect from April 27, 2011. The remaining issue is whether a rating in excess of 10 percent under Diagnostic Code 7801 is warranted. Increased ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Increased rating for lumbar spine disability. The Veteran was granted entitlement to service connection for lumbar degenerative disc disease, status-post L3-4 fusion, in a September 2008 rating decision, and assigned a 10 percent rating effective July 7, 2008. He subsequently filed the instant claim for increase, which was received on March 29, 2010. He contends that his lumbar degenerative disc disease, status-post L3-4 fusion, is more severely disabling than represented by the 10 percent rating assigned prior to March 29, 2010, the 20 percent rating assigned from March 29, 2010 to May 5, 2014, and the 40 percent rating assigned from May 5, 2014. The Veteran's lumbar degenerative disc disease, status-post L3-4 fusion, is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The General Rating Formula provides a 10 percent rating where there is forward thoracolumbar flexion greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is assigned when forward thoracolumbar flexion is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted when forward thoracolumbar flexion is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. Id. These ratings apply 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Formula). A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ratings under the General Formula are made 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the General Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). The IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. A 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during such period and a 60 percent rating is assigned for such episodes having a total duration of at least 6 weeks during such period. The Board notes that the effective date of a grant of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within a year from that date. The effective date is the later of the date of increase in disability or the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Here, the date the instant claim for increase was received was March 29, 2010. The Veteran has not argued, and the record does not otherwise reflect that he submitted an earlier claim. Accordingly, the Board will consider whether any increase in the rating for the low back disability is warranted from March 29, 2009 to the present. At an August 2010 VA examination, the Veteran reported an increase of his low back pain since his last VA examination in August 2008. His range of motion was recorded as 40 degrees of forward flexion, with no additional loss of range of motion after three repetitions. Extension was to 20 degrees, bilateral lateral flexion was to 20 degrees and bilateral rotation was to 30 degrees, also with no additional loss of range of motion after three repetitions. There was no ankylosis. It was noted that he was taking prescribed gabapentin for pain. The Veteran reported experiencing severe weekly flare-ups that were precipitated by normal use manipulation of the back, that lasted for hours, and were characterized by severe pain. The examiner also noted a history of fatigue, stiffness, weakness, and spasm. Additionally, the examiner commented that unless otherwise documented in the examination, passive range of motion was unchanged from active motion and on repetitive testing, range of motion values were unchanged from baseline values reported. The examiner noted that the low back disability effected occupational functioning in that it had resulted in the Veteran being assigned different duties and had resulted in increased absenteeism and tardiness in conjunction with causing decreased mobility and pain. Additionally, the examiner assessed the disability as having a severe effect on chores, shopping, exercise, sports and recreation, a moderate effect on traveling and driving, mild effects on feeding, bathing, dressing, and grooming and no effect on toileting. At a May 2014 VA examination, it was noted that the Veteran had undergone a total of four lumbar back surgeries with resultant lumbar decompression and fusion. Range of motion was recorded as 30 degrees of forward flexion, with no additional loss of range of motion after three repetitions. Extension was to 10 degrees, bilateral lateral flexion was to 20 degrees and bilateral rotation was to 20 degrees, also with no additional loss of range of motion after three repetitions. There was no ankylosis. Functional impairment was noted to include less movement than normal, pain on movement, interference with sitting, standing and/or weight-bearing and lack of endurance. Muscle spasm was also noted, which did not result in abnormal gait or abnormal spinal contour. There was no ankylosis and the Veteran was found to have incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. In the May 2020 joint motion, the parties noted that the August 2010 VA examination report indicates that the Veteran took pain medication for his lumbar spine disability three times a day with a 'good response to the treatment' and that the General Rating Formula for the Spine makes no mention of the effects of pain medication. Thus, the Board erred in the June 2019 decision by not discounting the ameliorative effects of the Veteran's pain medication on his range-of-motion. In a subsequent March 2021 opinion, provided pursuant to the December 2020 remand, a VA contract clinician concluded that from the period from March 29, 2010 to May 5, 2014, the Veteran's low back disability was likely less severe than the level of impairment found at the May 5, 2014 VA examination. This determination was based in part on a finding that the Veteran was not on any pain medication during this period, so such medication was not an ameliorative factor in relation to his range of motion. As this opinion is specifically contrary to the August 2010 VA examination and the joint motion, noting the Veteran's prescribed use of gabapentin for pain, the Board is not able to credit its ultimate conclusion. Moreover, the Board does not wish to further delay final adjudication of the Veteran's appeal by ordering further development, including a supplementary medical opinion addressing the severity of the low back disability from March 29, 2010 to May 5, 2014. Consequently, the Board considers the gabapentin as having had some ameliorative effect on the Veteran's range of motion, takes notice of his report of severe weekly flare-ups at the August 2010 VA examination, and also notes that the August 2010 examiner found that the low back disability had a severe effect on chores, shopping, exercise, sports and recreation and a moderate effect on traveling and driving. Considering all of this information together and resolving all reasonable doubt in the Veteran's favor, the Board will consider the Veteran's loss of function from March 29, 2010 to May 5, 2014 as equivalent to forward flexion to 30 degrees (as found at the May 2014 VA examination) even though flexion was measured to be to 40 degrees at the August 2010 VA examination. Thus, a 40 percent rating is warranted for the low back disability from March 29, 2010 to May 6, 2014. The Board also notes that there is no specific assessment of the Veteran's lumbar spine disability between an earlier August 2008 VA examination and the August 2010 VA examination. However, it appears that the Veteran did not begin receiving VA healthcare until December 2009. See December 2009 VA new patient vesting examination. Also, at that time, the Veteran was noted to have chronic and ongoing low back pain with limited extension, flexion and lateral rotation and was initially prescribed the gabapentin. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board will assign an earlier effective date of March 29, 2009 for the 40 percent rating. The Veteran may not be assigned an effective date prior to this for the increased rating given that his claim for increase was received on March 29, 2010. See 38 C.F.R. § 3.400(o)(2). Given this award, the Veteran is now assigned a 40 percent rating for the low back disability from March 29, 2009. A higher rating is not warranted under the General Rating Formula as ankylosis is specifically not shown. In this regard, in addition to the August 2012 and May 2014 examinations, subsequent examinations in December 2019 and May 2021 specifically found that no ankylosis was present. Also, there is no medical evidence of record even suggesting that impairment compatible with such immobility and consolidation of the lumbar spine is present and the Veteran has not alleged the presence of this higher level of impairment. Also, a higher rating is not warranted based on incapacitating episodes as such episodes lasting at least 6 weeks within any 12-month period are not shown. 38 C.F.R. § 4.71a, Code 5243 (for incapacitating episodes). The Board notes that pursuant to the November 2020 remand, the March 2021 opinion was provided, which addressed the potential that medication had reduced the assessed severity of the low back disability and also considered whether the Veteran may have exhibited more severe loss of function on passive motion, with and without weight-bearing, and on flare-ups. Although the Board was not able to credit this opinion, further remand for an additional opinion is not necessary. In this regard, there is simply no evidence to suggest that any of these factors (i.e. symptomatology present without ameliorative medication, active vs passive motion, weight bearing or non-weight bearing, flare-ups) alone or in combination resulted (or would have resulted) in impairment compatible with ankylosis at any time during the appeal period. Nor has the Veteran alleged the presence of such severe impairment (e.g. while he has reported severe flare-ups at times, along with severe pain, he has not reported consolidation of the lumbar spine area to any level of immobility, even during such flare-ups). Accordingly, further remand to obtain an opinion concerning whether functional impairment compatible with ankylosis has ever been present is unnecessary and would not benefit the Veteran. Finally, the Board notes that the findings of the May 2021 compensation and pension examination are actually compatible with assignment of a lower than 40 percent rating for the service-connected low back disability even after considering loss of function on repetitive use and after flare-ups. However, the Board will not disturb the 40 percent rating already assigned. In sum, considering all applicable criteria, a 40 percent but no higher rating is warranted for the Veteran's service-connected low back disability from March 29, 2009 to the present. Entitlement to a rating in excess of 10 percent for low back scar under Diagnostic Code (Code) 7801. As alluded to above, the Veteran is currently assigned a 10 percent rating for low back scar under Code 7801 effective March 29, 2010 and a separate 10 percent rating under Code 7804 effective April 27, 2011. After considering the JMR and the increased ratings granted since that time, this appeal is limited to whether a higher rating is warranted for the scar under Code 7801. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. In this case, because the appeal period ends prior to August 13, 2018, the criteria in effect prior to this date will be applied. Prior to August 13, 2018, Diagnostic Code 7801 applied to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. Higher ratings are available for scars with larger surface areas. Note 1 to Diagnostic Code 7801 instructed that a deep scar is one associated with underlying soft tissue damage. Id. At an August 2010 VA examination, the Veteran was noted to have a mid-line thick adherent scar of the lower back from L5 and up, measuring 13 x 3 cm with 1 cm depression from the skin surface. In an April 2021 opinion, a VA contract physician noted that the description of the lower back scar from the August 2010 VA examination indicated that the scar was depressed about 1 cm. The physician found that this scar depression did indicate some damage of the underlying soft tissue. Therefore, based on this observation, it was at least as likely as not that the Veteran had soft tissue damage associated with his scar. As indicated above, a 10 percent rating has already been assigned for the low back scar under Code 7801. The Board does not find a basis in the record for assigning a higher rating under Code 7801. In this regard, the scar is neither shown nor alleged to cover an area or areas of at least 12 square inches (77 sq. cm.), a necessary criterion for assigning a higher, 20 percent rating. Therefore, the evidence weighs squarely against the claim and a rating in excess of 10 percent for the low back scar under Code 7801 is not warranted. TDIU A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service connected disabilities, include PTSD, rated 50 percent disabling from March 29, 2010 and 70 percent disabling from February 10, 2021; low back disability, rated 40 percent disabling; radiculopathy of the right lower extremity with sciatic nerve impairment, rated 20 percent disabling; radiculopathy of the left lower extremity with sciatic nerve impairment, rated 20 percent disabling; radiculopathy of the right lower extremity with femoral nerve impairment, rated 20 percent disabling; tinnitus, rated 10 percent disabling; residual scar of the low back, rated 10 percent disabling; right wrist disability, rated 10 percent disabling; right eye disability, rated noncompensable; left ear hearing loss, rated noncompensable; and right wrist scar, rated noncompensable. From March 29, 2010, he has been assigned a 70 percent combined disability rating (this combined rating will be recalculated based on the increased rating awarded for his low back disability awarded above, according to 38 C.F.R. § 4.25); from May 6, 2014, he has been assigned a 90 percent combined disability rating; and from February 10, 2021, he has been assigned a 100 percent, total disability rating. Consequently, he meets the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16(a). He has also been reasonably shown to be unable to obtain and retain substantially gainful employment due to his combination of service-connected disabilities. In this regard, his work experience has largely been limited to duties as an Army Ranger during service, post-service military and law enforcement advising, and training and construction work, all positions involving a significant physical component. See e.g. service personnel records, March 2010 VA initial PTSD assessment, May 2010 VA mental health follow-up note, May 2010 VA vocational rehabilitation assessment. However, his significant physical disabilities, most notably his low back disability with accompanying radiculopathy, along with additional right wrist disability, are reasonably shown to preclude him from work with any significant physical component. See e.g. May 2010 VA vocational rehabilitation assessment indicating that the Veteran's physical limitations due to injuries while on active duty prevented him from performing duties as a military contractor and July 2010 VA vocational rehabilitation assessment indicating that long term services that would prepare him for sedentary employment offered him the greatest possibility of successful employment rehabilitation. His service-connected PTSD, in conjunction with this significant physical disability, is reasonably shown to preclude such employment to a substantially gainful level. In this regard, he is shown to have significant symptomatology, which negatively impacts occupational functioning, including severe difficulty being in crowds or groups, sleep impairment, anger, poor concentration, hypervigilance, night terrors, intrusive thoughts, anxiety attacks, isolative behavior, difficulty adapting to stress and difficulty adapting to change. See e.g. March 2010 VA mental health treatment record, May 2010 VA mental health treatment record, June 2010 VA mental health treatment record, March 2011 VA primary care treatment record, April 2014 VA primary care treatment record, May 2014 VA mental health treatment record and October 2015 Social Security Administration (SSA) brief evaluation record. Notably, the Veteran does have a college education and was at one point a full-time online student. See May 2014 VA mental health treatment note. However, given that his post-military education appears to have been online only due to PTSD symptomatology, this educational activity, in and of itself, does not establish show that he could function in the workforce at a substantially gainful level. Consequently, resolving any reasonable doubt in the Veteran's favor, he has been shown to be unable to obtain or retain a substantially gainful occupation due to his combination of service-connected disabilities during the appeal period. Accordingly, a TDIU award is warranted. 38 C.F.R. § 4.16(a). The Board is not able to pinpoint when the Veteran stopped working full time. On a Social Security Administration (SSA) form, he reported that stopped working on March 29, 2010. See undated SSA Disability Report (Form SSA-3368). However, at a May 14, 2010 VA mental health visit, the Veteran reported that he was still performing construction work (albeit while experiencing a great deal of physical pain) and at a June 2010 VA mental health visit, he reported that he had just been fired from his job due to not being willing to work on Memorial Day. The Board does generally find that TDIU has been established as of the time that the Veteran stopped working to a substantially gainful level. However, as this date is not specifically identifiable from the existing record, the effective date for the award of TDIU will be assigned by the agency of original jurisdiction in the first instance. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.