SPINE IMPAIRMENT OF

ERIC S. LEBOFF · 2026 · Case ID: 26004281

GRANTED

Summary

The Veteran served from July 1979 to April 1986. This case involves an appeal for an increased disability rating for his service-connected back condition, status post lumbar laminectomy and diskectomy, and entitlement to Total Disability based on Individual Unemployability (TDIU) from December 8, 2010, to March 28, 2011. The Board reviewed multiple VA examinations and lay statements, including testimony from the Veteran and his spouse, to assess the severity of the back condition and its impact on employability. The Veteran's back condition was found to limit his range of motion, particularly during flare-ups, which were described as incapacitating. The Board considered the Veteran's limited work experience, education, and the impact of his symptoms on his ability to perform daily tasks and maintain employment. After weighing the evidence, including a February 2024 VA examination that considered the Veteran's descriptions of flare-ups, the Board found the evidence to be at least in equipoise regarding the severity of the back disability, warranting a 40 percent rating. For the TDIU claim, the Board found the evidence also to be at least equally balanced, indicating the Veteran's combined service-connected disabilities prevented him from securing and following substantially gainful employment during the period in question. Consequently, the Board granted an initial disability rating of 40 percent for the back condition and granted TDIU retroactively.

Rationale

Evidence is at least in equipoise regarding severity; Symptoms comparable to favorable ankylosis of thoracolumbar spine; Pain on forward flexion impacts range of motion

Special Benefit

TDIU

Docket No.

17-06 327

Full Decision Text

Citation Nr: 26004281
Decision Date: 04/07/26 Archive Date: 04/07/26

DOCKET NO. 17-06 327
DATE: April 7, 2026

ORDER

Entitlement to an initial disability rating of 40 percent and no higher for status post lumbar laminectomy and diskectomy is granted.

Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from December 8, 2010 to March 28, 2011, is granted.

FINDINGS OF FACT

1. Resolving doubt in favor of the Veteran, the most probative lay and medical evidence of record is at least equally balanced that the Veteran's service-connected status post lumbar laminectomy and diskectomy results in symptoms of or comparable to forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, but does not result in symptoms of or comparable to unfavorable ankylosis of the entire thoracolumbar spine.

2. Resolving doubt in favor of the Veteran, the most probative lay and medical evidence of record is at least equally balanced that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities from December 8, 2010, one year prior to the date of claim, to March 28, 2011, the effective date of assignment of TDIU.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 40 percent for service-connected status post lumbar laminectomy and diskectomy, and no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

2. The criteria for entitlement to total disability rating based on TDIU on an extraschedular basis, due to service-connected disabilities from December 8, 2010 March 28, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has active service from July 1979 to April 1986.

This case is before the Board of Veterans' Appeals (Board) from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in September 2020 (09/01/2020 Hearing Transcript).

These matters were previously before the Board in March 2021 and September 2023, at which time they were remanded for additional development.

In September 2023, the Board remanded these matters to obtain a VA opinion that considered the Veteran's hearing testimony as to back symptom flare ups and reconsider TDIU as the claims are inextricably intertwined (09/19/2023 BVA Decision, pg. 14).

A February 2024 VA examiner provided an opinion that considered the Board's remand directives and the Veteran's description of flare ups (02/05/2024 C&P Exam, pg. 5). A supplemental statement of the case was issued in July 2024.

Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review.

1. Increased rating for service-connected back disability.

The Veteran is service-connected for aback disability, status post lumbar laminectomy and diskectomy.

Service connection was initially awarded in an August 2009 rating decision, which assigned a 20 percent disability rating from April 13, 2009.

In June 2010, the Veteran submitted a notice of disagreement and a statement of the case was issued in December 2012. The appeal was perfected with submission of a VA Form 9 in February 2013. Accordingly, the issue has been recharacterized as an initial rating.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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
June 2010, the Veteran submitted a notice of disagreement and a statement of the case was issued in December 2012. The appeal was perfected with submission of a VA Form 9 in February 2013. Accordingly, the issue has been recharacterized as an initial rating.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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.

A 20 percent rating is warranted 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.

38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment
1 (2011).

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Review of the evidence of record confirms this amendment is not applicable to the facts of this case.

The Veteran has already been service-connected for bilateral lower extremity radiculopathy associated with the femoral and sciatic nerves and the lay and medical evidence of record is against a finding that the Veteran has any additional neurological abnormality associated with his spine disability.

The Board recognizes the examinations of record include those previously found inadequate to rely upon to decide this case. Regardless, they are detailed here in consideration of the progression and severity of the Veteran's back disability.

Turning to the evidence, the Veteran was afforded a July 2009 VA examination for his back. At that time, he described his back pain as not debilitating except for one to two times per year, when he has a severe flare up. Flare-ups were described as incapacitating and lasting for two to three weeks at a time. Objectively, forward flexion was to 50 degrees with pain occurring from 30 to 50 degrees, extension was to 25 degrees with pain from 20 to 25 degrees, left lateral flexion was to 30 degrees, right lateral flexion was to 20 degrees, with pain from 10 to 20 degrees, and left and right lateral rotation was to 20 degrees with pain from 15 to 20 degrees (7/18/2009 VA Examination, pg. 3).

Another VA examination was provided in May 2011, which revealed complaints of back pain. The Veteran endorsed limitations with walking, driving, and "everything" (05/11/2011 VA Examination, pg. 41). The objective examination of the Veteran's thoracolumbar sacrospinalis revealed no spasm, atrophy, guarding, pain with motion, tenderness, or weakness (05/11/2011 VA Examination, pg. 37). Regarding range of motion, the Veteran's back was assessed with forward flexion of 45 degrees; extension of 15 degrees; right lateral flexion of 20 degrees; left lateral flexion of 20 degrees; right lateral rotation of 20 degrees; and left lateral rotation of 20 degrees; and combined range of motion of 140 degrees (05/11/2011 VA Examination, pg. 39). The examiner noted the Veteran's complaint of pain throughout the examination, but pain was not noted to limit the Veteran's range of motion further. Flare-ups were not addressed.

In August 2011 the Veteran requested a new VA examination to determine the current severity of his spinal impairment (08/11/2011 Third Party Correspondence, pg. 4).

In December 2011, the Veteran's spouse provided a statement describing the impact of the Veteran's back disability ability to perform daily tasks and impact on his employment (12/08/2011 Buddy / Lay Statement).

In association with the Veteran's Form 9, the Veteran provided a letter asserting the VA did not properly consider the May 2011 VA examination for his back, specifically the impact of pain on the Veteran's range of motion and the impact his spinal disability limited his walking, driving and everything (02/15/2013 Third Party Correspondence).

The Veteran was next afforded
a new VA examination to determine the current severity of his spinal impairment (08/11/2011 Third Party Correspondence, pg. 4).

The Veteran was next afforded a VA examination for his back in April 2014. At that time, he complained his back pain was worsening and pretty much all the time. Objectively, forward flexion was to 45 degrees with painful motion beginning at 20 degrees; extension was to 15 degrees, with pain beginning at 10 degrees; right lateral flexion was to 20 degrees, pain at 10 degrees; left lateral flexion was to 20 degrees pain at 10 degrees; right lateral rotation was to 20 degrees pain at 10 degrees; and left lateral rotation of 20 degrees pain at 10 degrees; combined range of motion of 140 degrees. Combined range of motion compensating for pain is reduced to 70 degrees. 04/09/2014 C&P Exam, pg. 5) Loss of range of motion was noted upon repetitive use due to pain, disturbance of locomotion and interference with sitting, standing or weight bearing. Additionally, there was tenderness when paraspinal area was palpated and muscle spasm resulting in abnormal gait or spinal contour was noted. No guarding or ankylosis was noted. The Veteran used a cane regularly for locomotion.

The Veteran was afforded another VA examination in April 2021. At that time, he reported difficulty with running, walking, sitting, standing for long periods of time, climbing ladders or stairs. He reported difficulty sleeping due to back pain and difficulty bending lifting and carrying.

Objectively, the Veteran's back was assessed with forward flexion of 40 degrees; extension of 15 degrees; right lateral flexion of 15 degrees; left lateral flexion of 15 degrees; right lateral rotation of 20 degrees; and left lateral rotation of 20 degrees; and combined range of motion of 125 degrees. Evidence of pain was noted on weight bearing and active motion, but the examiner did not find that pain resulted in or cause functional loss. The examiner did not identify additional loss of range of motion on repetition or flare ups. The examiner noted muscle spasm that did not result in abnormal gait or abnormal spine contour, with no guarding, muscle atrophy, or ankylosis indicated. Occasional use of a cane was confirmed 04/26/2021 C&P Exam, pgs. 8, 11, 13).

Despite the April 2021 examiner's findings, especially as to flare ups, the Board has recognized the Veteran's September 2020 sworn testimony that he experiences episodes of back pain where he is unable to get out of bed if he moves his back the wrong way. The Board finds this credible as to the Veteran's experience of flare-ups.

Pursuant to the most recent Board remand, the Veteran's records were reviewed by a VA examiner in February 2024. After reviewing the record and considering the Veteran's lay statements as to his symptoms, the VA examiner confirmed the Veteran has flare-ups daily, which last for hours and can be severe with difficulty moving when they occur.

The examiner estimated the Veteran's range of motion measurements during a flare up to be forward flexion to 40 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees; with combined range of motion 110 degrees (02/05/2024 C&P Exam, pg. 5).

The Board finds after review of the record, the evidence is at least in equipoise as to whether the criteria for a 40 percent rating have been most nearly approximated.

The evidence shows the Veteran's back disability results in symptoms most comparable to forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. unfavorable ankylosis of the entire thoracolumbar spine, consistent with a 40 percent disability rating.

The Board notes specifically the July 2009 VA examiner having found on forward flexion pain began at 30 degrees. This finding, in and of itself,
/2024 C&P Exam, pg. 5).

The Board finds after review of the record, the evidence is at least in equipoise as to whether the criteria for a 40 percent rating have been most nearly approximated.

The Board notes specifically the July 2009 VA examiner having found on forward flexion pain began at 30 degrees. This finding, in and of itself, would not have persuaded the Board that his back disability was of a severity warranting a higher rating. However, in April 2014 painful motion on forward flexion was found to begin at 20 degrees.

Taken together, along with the Veteran's description of his symptoms, the Board finds the evidence indicates back symptoms, notably pain on forward flexion, impacting his range of motion such that the rating most consistent with his back disability symptoms is that of 40 percent.

The Board has considered whether rating higher than 40 percent is warranted. The medical evidence does not suggest, nor has the Veteran contended that his symptoms include or are comparable to unfavorable ankylosis of the entire thoracolumbar spine. Even considering his described flareups, no evidence of record suggests fixation of the Veteran's spine in either flexion or extension. No evidence of record indicates the Veteran has difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. As such, the evidence of record is persuasively against assignment of a 50 percent rating.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for his service-connected back disability. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

2. Entitlement to TDIU, prior to March 28, 2011.

Turning to the issue of individual unemployment, the Board notes that TDIU is in effect from March 28, 2011. The Veteran's claim on appeal is considered to have been filed December 8, 2011 (12/08/2011 Third Party Correspondence; 12/17/2012 Rating Decision - Codesheet).

The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1).

Pursuant to 38 C.F.R. § 3.400 (o)(2), an effective date may be assigned up to one year earlier than the date of claim when medical records indicate an increase in a disability. Receipt of such medical records may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination hospitalization or medical treatment.

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id.

If a Veteran
100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

If a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16 (b).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component is met when the Veteran is unemployed or marginally employed. Marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment includes employment in a protected environment, such as a family business or sheltered workshop, which involves a lower-income position that, due to the Veteran's service-connected disabilities, is shielded in some respect from competition in the employment market. LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

The non-economic component of the phrase "unable to secure and follow a substantially gainful occupation" includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73.

The Board is not permitted to consider advancing age or a nonservice-connected disability when determining entitlement to a TDIU. 38 C.F.R. §§ 3.341(a), 4.16, 4.19.

A TDIU does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

Recently, in Witkowski v. Collins, No. 24-0640, 2025 U.S. App. Vet. Claims LEXIS 1423 (Vet. App. Oct. 21, 2025), the Court overturned the longstanding precedent of Bowling v. Principi, 15 Vet. App. 1, 10 (2001), that had prevented the Board from considering extraschedular TDIU in the first instance without initially referring TDIU to the Director of Compensation Service for extraschedular consideration. As a result of Witkowski, the Board is now able to decide an extraschedular TDIU in the first instance without referral to the Director of Compensation Service. See Witkowski, 2025 U.S. App. Vet. Claims LEX
-0640, 2025 U.S. App. Vet. Claims LEXIS 1423 (Vet. App. Oct. 21, 2025), the Court overturned the longstanding precedent of Bowling v. Principi, 15 Vet. App. 1, 10 (2001), that had prevented the Board from considering extraschedular TDIU in the first instance without initially referring TDIU to the Director of Compensation Service for extraschedular consideration. As a result of Witkowski, the Board is now able to decide an extraschedular TDIU in the first instance without referral to the Director of Compensation Service. See Witkowski, 2025 U.S. App. Vet. Claims LEXIS 1423.

The Veteran seeks assignment of TDIU, based on his assertion that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment.

The question before the Board is whether evidence of record indicates that the Veteran was unable to secure or follow substantially gainful employment between December 8, 2010, a year prior to the Veteran's claim, and March 28, 2011, the date he has been assigned TDIU.

Here, prior to March 28, 2011, service connection was in effect for the Veteran's back at a disability rating of 20 percent; sciatic nerve radiculopathy right lower extremity at 10 percent, sciatic nerve radiculopathy left lower extremity at 10 percent; non-compensable rating for scarring, with a total disability rating of 40 percent from July 23, 2010 (01/17/2024 Rating Decision - Codesheet).

The Veteran did not meet the schedular criteria. Nonetheless, the Board will consider whether extraschedular TDIU was warranted.

Evidence of record includes a letter from the Veteran's spouse describing the impact of his symptoms on his employment (12/08/2011 Buddy / Lay Statement).

The Veteran's employment history, taken on May 11, 2011 reveals that he was employed part time as a truck driver. The Veteran explained that he had last been employed full time, was in 2008. He described his current employment as working part time for a friend, also truck driving whenever he is able (05/11/2011 VA Examination, pg. 8).

Social Security records indicate the Veteran claimed becoming too disabled to work in June 2011 due to his lower back, knees, right eye, right shoulder, heart, high blood pressure, and high cholesterol (6/10/2021 Medical Treatment Records - Furnished by SSA). The list of conditions considered by Social Security includes non-service-connected conditions (01/17/2024 Rating Decision - Codesheet).

Of record is a September 10, 2010 letter from the Veteran's former employer confirming the Veteran's part time employment and explaining that he will be laid off in September 2010. The employer explained he had been trying to help the Veteran by letting him perform work he was physically able to perform, but he is not able to do much (12/08/2011 Third Party Correspondence, pg. 3).

While the Veteran's specific disability was not identified by the employer, taken in conjunction with the spouse's letter, and medical treatment notes documenting the impact of his back on his employment (for example 07/18/2009 VA Examination, pg. 2), the Board finds this letter at least as likely as not indicates the Veteran's back prevented him from performing work as early as September 2010. The Board also notes that the tone of the employer's September 2010 letter indicates the Veteran's employment was marginal in nature.

A private opinion from an orthopedic doctor from June 2013 reveals that the Veteran's back prevented him from doing any type of work at that time because he cannot find a comfortable position. The provider, although considering the totality of the Veteran's ailments at that time, including nonservice-connected disabilities, opined the Veteran had been disabled for at least the past year, if not for longer based on his current complaints, symptomatology and the review (07/01/2013 Medical Treatment Record - Non-Government Facility).

Other factors impacting the employability specific to this Veteran include his work experience, which since 2004 has been limited to truck driving. He has a twelfth grade education with no other education or training (07/01/2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability).

Based on the above, the Board finds the evidence is at least in equipoise that the Veteran's ability to secure and follow a substantially gainful occupation was impacted by the physical effects of his back, bilateral lower radicular symptoms impacting his sciatic nerve from December 8, 2010 to March
complaints, symptomatology and the review (07/01/2013 Medical Treatment Record - Non-Government Facility).

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The Veteran's back symptoms, notably pain and inability to remain in one position, his limited work experience, education and training, would not have abled him to secure and follow a substantially gainful occupation during the period in question.

Accordingly, as the evidence is at least equally balance, the Board finds TDIU on an extraschedular basis from December 8, 2010 to March 28, 2011 is warranted and thus granted.

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Myers, Pamella

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.

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