Citation Nr: 25003540 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 12-32 620 DATE: March 13, 2025 ORDER 1. For the period prior to April 4, 2017, an evaluation in excess of 10 percent for intervertebral disc syndrome (IVDS) is denied. 2. From April 7, 2010, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to April 4, 2017, the Veteran's IVDS manifested in forward flexion of 90 degrees and a combined range of motion of 220 degrees. 2. For the entire appeal period, the Veteran was precluded from obtaining and maintaining gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 4, 2017, the criteria for a rating in excess of 10 percent for IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. Prior to April 4, 2017, the criteria for a TDIU, to include on an extraschedular basis, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1972 until his honorable discharge in May 1976. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. §§ 5109B, 7112, and 38 C.F.R. § 20.902(d). These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by a Regional Office of the United States Department of Veterans Affairs (VA), which granted the Veteran's claim for service connection for IVDS with an effective date of April 7, 2010. The Veteran appealed his initial rating, and the Board remanded the claim in October 2016. During the subsequent development, the Regional Office issued a partial grant, increasing the Veteran's rating to 40 percent with an effective date of April 4, 2017. The claim was again remanded in June 2018. The Board again denied the claim in October 2019 and the Veteran appealed. The Court of Appeals for Veterans Claims (Court) vacated the denial and remanded the claim to the Board. The Board remanded the claim in April 2022 and April 2023 for further development, to include a retrospective opinion on the severity of the Veteran's spine disability. In April 2024, the Board denied the Veteran's claim for a rating in excess of 10 percent for IVDS prior to April 4, 2017. The Veteran again appealed to the Court. At the Court, the parties submitted a Joint Motion for Partial Remand (Motion). In their Motion, they stipulated that vacatur and remand were required because (1) the Board failed to consider and apply 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); (2) the Board failed to consider and address the Veteran's references to entitlement under 38 C.F.R. § 3.321(b). See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Additionally, the April 2024 Board decision granted the Veteran's claim for a total disability rating based on individual unemployability (TDIU) with an effective date of April 4, 2017, and remanded the Veteran's claim for a TDIU prior to April 4, 2017. A January 2025 Supplemental Statement of the Case (SSOC) again denied the Veteran's claim for a TDIU prior to April 4, 2017. This claim now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. For the period prior to April 4, 2017, a rating in excess of 10 percent for IVDS is denied. The period on appeal is from the date the Veteran's claim was received, April 7, 2010, to April 4, 2017. Currently, the Veteran's lumbar spine disability is rated as IVDS under § 4.71a Schedule of ratings-musculoskeletal system, the General Rating Formula for Diseases and Injuries of the Spine, diagnostic code (DC) 5242-5243. A hyphenated Diagnostic Code (DC) is used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Here, DC 5242 is for degenerative arthritis of the spine, other than IVDS and DC 5243 is for IVDS. The regulations instruct as follows, "Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25." Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: DC 5243 instructs the Board to consider the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. That formula provides a 10 percent rating for IVDS "With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months." This is the minimum rating. The formula also provides the following note, "Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Over the period on appeal, the Veteran has had seven VA examinations, in June 2010, January 2011, October 2013, and April 2017. The Veteran was not diagnosed with IVDS in the June 2010, January 2011, or October 2013 examinations. The first diagnosis of IVDS was in the April 2017 VA examination disability benefits questionnaire. However, the examiner noted that 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. As a result, he does not meet the 10 percent rating criteria under DC 5243. As a result, the Veteran is not entitled to a compensable rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for any part of the period on appeal and so the Board will rate his lumbar spine disability using the General Rating Formula for Diseases and Injuries of the Spine. General Rating Formula for Diseases and Injuries of the Spine: Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or; favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire thoracolumbar spine is demonstrated. 38 C.F.R. § 4.71a, DC 5242. The General Rating Formula for Diseases and Injuries of the Spine also include the following notes, in part: Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 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. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary p. 93 (30th ed. 2003). "Favorable ankylosis" is defined as "[f]ixation of a spinal segment neutral position (zero degrees)." 38 C.F.R. § 4.71a, DC 5237 at Note (5). "Unfavorable ankylosis" is defined as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Id. The Veteran's first VA examination took place in June 2010. The June 2010 and January 2011 VA examination provided the same evidence regarding severity. His back disability caused pain that was a 6/10 on a daily basis, which is worse than previously. The Veteran reported burning pain in his legs as well, but no numbness or pain. He reported monthly flare-ups that occur with bending, walking, and lifting. He was not prescribed bed rest by a doctor in the previous 12 months. He did not have bowel or bladder symptoms. He had 90 degrees of forward flexion without pain. Repetition did not increase pain. His extension was 10 degrees and motion beyond 10 degrees was "exquisitely painful." Both right and left lateral bending was 30 degrees without any pain and both right and left rotation was 30 degrees without any pain. The VA examiner stated that it was difficult to quantify functional loss associated with pain with any degree of medical certainty, but did document that there was pain with loss of range of motion. The VA examiner did not document functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. The October 2013 VA examination found that his forward flexion ended at 90 degrees or greater. His extension was 20 degrees, left and right lateral flexion ended at 30 degrees or greater, and left and right rotation ended at 30 degrees or greater. As such, his combined range of motion was 230 degrees. Repetitive use testing had the same results. There was no functional loss with repetitive use testing to include less movement than normal was present. There was mild tenderness upon palpation of the lumbar paraspinal muscles. Guarding and muscle spasms were not present. Radiculopathy, neurological symptoms, and IVDS were not present. The Veteran was diagnosed with lumbosacral strain, degenerative arthritis of the spine, IVDS, chronic lumbar muscle spasms, and bilateral lower radiculopathy in the April 2017 VA disability benefits questionnaire examination. The Veteran reported flare-ups of increased back pain that required him to stop what he was doing. He also reported functional impairment as being unable to walk or lift anything. The Veteran had a forward flexion of 70 degrees and extension, right and left lateral flexion, and left and right lateral rotation of 10 degrees each. As such, his combined range of motion was 120 degrees. Pain was noted on rest/non-movement. There was pain with weight bearing. Repetitive-use testing did not result in further loss of range of motion. Repetitive use over time testing did not take place. The examiner documented that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, and lack of endurance were present and did not decrease range of motion. The examination did not take place during a flare-up, but the examiner was able to provide range of motion for when a flare-up took place. The examiner noted that forward flexion during a flare-up would be 30 degrees, and all other measurements were 5 degrees. The combined range of motion was 55 degrees. The Veteran had muscle spasms and guarding that resulted in an abnormal gait or spinal contour He also had weakened movement, instability of station, disturbance of locomotion, and interference with sitting and standing. Ankylosis and neurological abnormalities were not present. Although the Veteran was found to have IVDS he was not prescribed bed rest. He reported regularly using a back brace. The Veteran was awarded a 40 percent as of April 4, 2017, which is the date the April 2017 examination took place. In May 2017, the Regional Office obtained an addendum medical opinion regarding a retrospective opinion concerning the Veteran's spine disability. The examiner stated in part: X-ray result of spine showing slight scoliosis in 2010 is subjective based on the X-ray taken at time where claimant did not stand straight or rotated one way or another which gave the impression of scoliosis, not noted on future X-rays. The latter suggest the reading of scoliosis in 2010 was in error and the overwhelming majority of lumbar spine X-ray results of non-scoliotic readings are reliably correct. See May 2017 Addendum VA Examination. The VA examiner also documented that the clinical notes of the Veteran's lumbar spine condition from the June 2010 VA examination reported normal ROM except for extension 10 degrees with normal X-ray and normal gait. . . Claimant's ambulation has been found to be normal until 2013." The Board has not found competent, probative medical evidence of record that the Veteran had ankylosis, or the functional equivalent, at any time during the period on appeal. In addition to the diagnostic codes, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body. . . in order to constitute functional loss"). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability ; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional impairment loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles and nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Additionally, the Court has found "application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis-in other words, if it is the functional equivalent of ankylosis." Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). In Chavis, the Court held that, in the absence of a medical of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the function equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affective joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in function loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the evidence weighs persuasively against finding that the Veteran's low back disability warrants a higher rating. Prior to April 2017, the Veteran's low back disability has met the 10 percent rating criteria, but not higher, for the entire period on appeal. There is no competent, probative medical evidence of record that his forward flexion was between 30 and 60 degrees, or that his combined range of motion was 120 degrees or less prior to the April 2017 VA examination. There is no competent or probative evidence that the Veteran experienced additional function loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance during flare-ups or after repetitive use. While pain, weakness, and lack of endurance were present on the October 2013 VA examination, these factors did not decrease range of motion. Likewise, the Veteran had muscle spasms and guarding that resulted in an abnormal gait or spinal contour in the April 2017 VA examination but not before. As a result, the Board finds that the Veteran is not entitled to a higher disability rating in excess of 10 percent prior to April 2017. Additionally, the Veteran's 10 percent rating is supported by the medical treatment records. The early VA treatment records show that the Veteran's low back disability was stable with increasing pain over time. A July 2010 record gave the following impression "chronic LBP secondary to degenerative changes. Neurologically stable. No red flags." The Veteran reported that pushing the lawnmower and hoeing soil in the garden aggravated his back. VA treatment records from July 2010 show an x-ray of the spine with the following results, "degenerative changes. Poor mobility between the neutral flexion and extension images." "Slight scoliosis" was seen but ruled out in later x-rays. In a September 2010 treatment record the Veteran reported the following regarding his back pain: ... pain as being bilateral, paramedian, low lumbar pain which extends across the back and buttocks in a bank like distribution, occasionally referring into one or both lower extremities but usually isolated to the back alone. His pain is worse with standing, better with sitting. Although he as pain frequently he does occasionally have pain-free periods at rest. His pain tends to become exacerbated with standing, stooping, bending, lifting and otherwise working in his garden. See September 2010 VA Treatment Record. The September 2010 VA treatment records show that "seated lumbar extension exacerbates usual pain" and "seated lumbar flexion a few degrees beyond neutral partially relieves it." The Veteran was prescribed a consult for soft lumbar corset. An earlier August 2010 and a later November 2010 VA treatment record both note report that the Veteran did not have pain during his visit. The Veteran reported in August 2010 that he was unable to garden, that it was difficult to do regular housework and yard care, and that his back pain felt like a constant drain on him. He then reported in September 2010 that his back pain was exacerbated by working in the garden. He characterized his pain as aching with a peak of eight, at best was a five, and was acceptable at a six out of ten. His pain was intermittent and increased with walking and lifting. A May 2011 treatment note reported continued back pain with normal symmetry, neurological symptoms, and gait. His range of motion was "fair-with lateral flexion, ext. and ant. flexion." In October 2011, the Veteran reported that his back disability was "basically unchanged" over the last year and a half with his pain at a four out of ten. His pain score was also a four out of ten in November 2011 and there were no changes reported at that time. In March 2012 the Veteran reported a pain score of zero out of ten and that he had pain while driving to the appointment. During the "Exercise Screening" he reported having an "active lifestyle." The Board finds that the Veteran has been appropriately awarded a 10 percent rating prior to April 4, 2017, based on the medical evidence available in the VA examinations and medical treatment records. When considering his lay reports as to how pain affects his back disability, despite such, the Veteran still had a range of motion here he could touch his shins and his range of motion measurements did not exceed the 10 percent rating criteria. Likewise, there is no competent medical evidence of record to establish that the Veteran had ankylosis or the functional equivalent at any point during the period on appeal. Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or maligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Here, section 4.59 is no longer applicable because the Veteran is already in receipt of a minimum compensable rating for the entire period on appeal. The Veteran has additionally asserted that his IVDS should be considered for a higher rating on an extra-schedular basis. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 20, 4.27. However, given that the ratings are averages, it follows that an assigned rating may not completely account for each individual appellant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. In this regard, the Board has considered whether or not the Veteran's symptoms due to his lumbar spine disability are contemplated by the rating criteria. The Board finds that all of the Veteran's symptoms have been contemplated by DC 5243, as well as 38 C.F.R. §§ 4.40, 4.45, which contemplate functional loss and factors that cause additional reductions in range of motion of the joint. For the period prior to April 4, 2017, the Veteran's lumbar spine disability was predominantly characterized by pain and limited range of motion. See, e.g., June 2010 VA examination report; see also October 2013 VA examination report; see also VA treatment records. The Veteran reported daily pain at a level of 6/10 and monthly flare-ups affecting bending, lifting, and walking. Neither the June 2010 VA examination nor the October 2013 VA examination showed symptoms of radiculopathy. There was no evidence of ankylosis of the lumbar spine. In summary, the probative evidence does not show that the Veteran's spine disability manifested with symptoms that were not contemplated by the schedular-rating criteria for a lumbar spine disability. All of the above-mentioned symptoms are contemplated by the pertinent Diagnostic Codes, DC 5243 and 8510 and the disability is not characterized by unusual symptoms that the schedular rating criteria has not considered. Additionally, the Veteran has not actually reported having any unusual symptoms, nor has the medical evidence reflected the existence of any unusual circumstances related to the lumbar spine disability, such as, for example, periods of hospitalization due to the lumbar spine disability. Therefore, the Board finds the criteria for referral under 38 C.F.R. § 3.321(b) have not been met. 2. From April 7, 2010, a TDIU on an extraschedular basis is granted. A request for TDIU benefits is not a separate claim for benefits but rather "is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule." Norris v. West, 12 Vet. App. 413, 420-21 (1999). When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Consequently, a separate formal claim for TDIU is unnecessary in the context of an appeal from an initial rating. Id. at 454; Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). TDIU benefits may be awarded on a schedular basis under 38 C.F.R. § 4.16(a) or an extraschedular basis under 38 C.F.R. 4.16(b). When a "rating board" determines that a veteran is unemployable due to his or her service-connected disabilities, but the veteran fails to meet the schedular rating criteria listed in 38 C.F.R. § 4.16(a), the rating board is required to refer the matter to the Director of Compensation Services for extraschedular consideration. 38 C.F.R. § 4.16(b). The "rating board" includes the Board of Veterans' Appeals. Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (citation omitted). "[T]he initial extraschedular referral decision under [section] 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see Wages, 27 Vet. App. at 235. Whether "the evidence nevertheless shows that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities" is the question to answer in the adjudication stage of assigning and extraschedular disability rating. Ray, 31 Vet. App. at 66. "Substantially gainful employment" includes two components: a noneconomic component and economic component. The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 31 Vet. App. at 73. When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. (citations omitted). The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case." Ortiz-Valles, 28 Vet. App. at 71 (emphasis added). Marginal employment on a facts found basis includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). "Protected environment" is not defined by statues or VA regulations, but was most recently defined by the Court to mean "employment in a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza and McBride v. McDonough, Nos. 21-4467 and 20-8562, U.S. Court of Appeals for Veterans Claims, (January 24, 2024). In this respect, the Board is mindful of the Americans with Disabilities Act (ADA), especially its mandate that employers provide reasonable accommodations for individuals with disabilities such as "job restructuring, part-time or modified work schedule . . . [and] acquisition or modification of equipment or devices." 42 U.S.C. § 12111(9)(B). Where a veteran's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the veteran to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer. In short, the economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and that the non-economic component requires the Board to fully explain why it concluded a veteran was capable of such employment. Ray, 31 Vet. App. at 73. The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 75-76. The Veteran is in receipt of TDIU benefits as of April 7, 2017. Prior to April 7, 2017, the Veteran was service-connected for chronic lumbar muscle strain (rated as 10 percent disabling from April 7, 2010). The Veteran had a combined evaluation of 10 percent from April 7, 2010. The Veteran's service-connected disabilities prior to April 7, 2017, did not meet the schedular criteria for TDIU benefits. See 38 C.F.R. § 4.16(a). Therefore, he can only receive TDIU benefits based on extraschedular consideration prior to April 7, 2017. In cases where the schedular criteria are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(b). Id. at 10. If the Director declines to award an extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director's decision is the same as the RO's as far as the Board's jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). The Board referred the matter to the Director of Compensation for Pension Service (Director) to address whether TDIU benefits were warranted on an extraschedular basis. The Director answered in the negative. Although the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU benefits under section 4.16(b), the Board is not bound by the Director's decision. Wages, 27 Vet. App. at 238-39; Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Likewise, the Board's decision to refer a TDIU claim for extraschedular consideration does not bind the Board when it later decides whether to award an extraschedular TDIU. Ray, 31 Vet. App. at 66. The Veteran has primarily asserted that TDIU is warranted due to his service-connected lumbar spine disability. The Veteran asserted that the severity of his service-connected lumbar spine disability has prevented him from securing and maintaining substantially gainful employment since April 7, 2010. Regarding the Veteran's work history and experience, the record reflects that following his discharge from active duty, the Veteran maintained employment through 2004. The Veteran has consistently reported, and records show, that he worked in the farming industry from June 1992 to January 2004 when he stopped working because of his back disability. See VA 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. Social Security records document that the Veteran was a farmhand from June 1992 to January 2004 with responsibilities such as driving heavy vehicles, planting and flowing fields, and feeding livestock. The Veteran asserts that his back disability made it difficult to walk without a cane, lift anything, bend, or stand or walk for long periods of time. See VA 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. The Veteran also reported that he completed high school. He did not indicate any additional educational or occupational history. Id. A June 2010 VA examination showed back pain on a scale of 6/10. The Veteran indicated that he was unemployed, but stated that his back disability did not affect his ability to do his job and that he had no doctor-ordered be rest in the past 12 months. An October 2013 VA examination showed that the Veteran's back disability indicated that the Veteran's back disability had no impact on his ability to work. In April 2024, the Veteran submitted a vocational report through his representative in which a vocational rehabilitation counselor, L.M., M.S., CRC, opined that the Veteran's back disability has severely impacted his ability to participate in gainful employment since 2004. L.M., M.S., CRC, opined that the Veteran's difficulty sitting, standing, walking, bending over, and flare-ups, in combination with dependency pain medication which cause him to be drowsy, he would be significantly impeded in areas of focus, task completion, and that he would have difficulty functioning adequately in any employment ranging from sedentary work, light work, to very heavy work. L.M., M.S., CRC, also stated that his education and computer skills were inadequate to obtain sedentary or office type work. The question is whether, for any period contemplated by this appeal, the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the court defined "substantially gainful employment" as an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the veteran's earned annual income. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 392. After careful review of the record, the Board finds that the evidence of record weighs persuasively in favor of finding that from April 7, 2010, the Veteran's service-connected back disability precluded him from securing and maintaining substantially gainful employment. Despite the low disability rating for his low back condition, Social Security records reflect that the Veteran as determined disabled by the Social Security Administration with an established onset date of May 19, 2006. When considering the Veteran's back disability and its impact, the record reflects inability to perform certain tasks due to such difficulties as inability to stand or sit for long periods of time or difficulty bending or lifting. The Veteran spent the entirety of his post-service employment in the farming industry working as a general laborer which required him to perform multiple tasks including driving large vehicles, harvesting crops, tending to crops and caring for cows. He does not have additional occupational experience or education. Thus, the weight of the competent evidence of record does demonstrate that the Veteran's service-connected back disability alone was of such severity to preclude substantially gainful employment. The Veteran has no experience in sedentary or office work. The private vocational assessment submitted by the Veteran indicates that he has been precluded from securing and maintaining substantially gainful employment as a result of his back disability since 2004. The Board finds the private vocational assessment submitted by the Veteran in April 2024 the most competent and probative evidence of record regarding the impact of his service-connected back disability. The provider interviewed the Veteran, considered lay statements from the Veteran, and provided well-reasoned rationale supported by accurate factual history. (Continued on the next page) ? For the foregoing reasons, the Veteran's claim for a TDIU on an extraschedular basis from April 7, 2010, is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, P. M., 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.