Citation Nr: 1752450 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 07-15 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent from August 25, 2005 to April 20, 2011; in excess of 20 percent from April 20, 2011 to April 25, 2016, and in excess of 40 percent thereafter for degenerative joint disease (DJD) of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 20, 2011. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Cooklin, Associate Counsel INTRODUCTION The Veteran served in the Army from August 1976 to June 1979. Before the Board of Veterans' Appeals (Board) is an appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which in January 2006 granted service connection for lumbar spine disability with an initial 10 percent disability rating. In January 2016 the RO denied an earlier effective date of April 20, 2011, for Total Disability for Individual Unemployability (TDIU). In September 2009, the Veteran testified before a Decisional Review Officer (DRO). In June 2010, the lumbar spine claim was remanded for the Veteran to appear before a Veterans Law Judge. In November 2010, the Veteran testified before the undersigned in Montgomery, Alabama. In September 2016, the claim was again remanded to obtain updated examinations. The Board finds there has been substantial compliance with its April 2010 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall when the examiner made the ultimate determination required by the Board's remand.) FINDINGS OF FACT 1. During the period from April 25, 2005 to August 3, 2009, the Veteran's DJD was characterized by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 2. During the period from August 3, 2009 to April 26, 2009 the Veteran's DJD was characterized by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. 3. Since April 26, 2016 the Veteran's DJD was characterized by forward flexion of the thoracolumbar spine at 30 degrees or less. 4. Prior to April 20, 2011, the Veteran is not shown to be unemployable by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an rating in excess of 10 percent from August 25, 2005 have not been met. 38 U.S.C. §§ 115, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The criteria for a rating of 20 percent for DJD are met from August 3, 2009. 38 U.S.C. §§ 115, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). 3. The criteria for a rating in excess of 40 percent after April 26, 2016 are not met. 38 U.S.C. §§ 115, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). 4. The criteria for TDIU prior to April 20, 2011 are not met. Kuppamala v. McDonald, 27 Vet. App. 447 (2015); 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to an increased rating for his lumbar spine disability. As indicated above, he also asserts entitlement to a TDIU, alleging inability to retain employment due to his service-connected disabilities. In January of 2006, a RD assigned an initial evaluation of 10 percent for DJD, effective August 25, 2005. The Veteran disagreed with the rating, indicating his condition was worse and that he had scoliosis due to the shortening of his leg, thereby warranting a higher rating of 50 percent. See Notice of Disagreement, February 2006. Legal Criteria The VA's Schedule for Rating Disabilities (Schedule) sets the criteria for rating veteran's impairments. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). The Schedule ratings represent a percentage of impairment in civil earning capacity resulting from a veteran's service-connected disabilities, and correspond to a diagnostic code identifying various disabilities. 38 U.S.C. § 1155 (2012) ; 38 C.F.R. § 4.1 (2017). For initial service-connected claims, the Board reviews all the evidence and medical history of record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). While every detail need not be discussed, reasonable doubt is decided in favor of the veteran-if a there is uncertainty as to which of two ratings apply under a diagnostic code, the higher rating is applied. 38 C.F.R. § 4.3 (2017). Where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of all the medical evidence since the grant of service connection is required. Additionally, consideration of the appropriateness of "staged rating" must be given. Id. In an increased rating claim, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35 (1993). Staged ratings, the practice of determining whether separate ratings may apply for different periods of time where a disability varies in severity over the period, applies to both initial ratings and to claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999), Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson at 126. Back disabilities are rated under either the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, or the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71(a). Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12 month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. 38 C.F.R. § 4.71(a), Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71(a), Diagnostic Code 5243, Note (1). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the first DC is assigned for traumatic arthritis under DC 5010, while the second DC is assigned for degenerative arthritis of the spine under DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or if the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Note (2) provides that, 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. See also Plate V. 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. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71(a). 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); 38 C.F.R. §§ 3.102, 4.3. August 25, 2005 to August 3, 2009 Initial rating claims are defined as "original claims that were placed in appellate status by NOD's expressing disagreement with initial rating awards and never ultimately resolved until the Board decision on appeal." Fenderson v. West, 12 Vet. App. 119, 125 (1999). A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Staged ratings account "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." Id. The present case presents three staged ratings for DJD throughout the appeal period. While the latter two were not specifically disagreed with, a veteran generally is presumed to be seeking the highest available rating, hence all three ratings remain on appeal unless the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). For initial rating claims, the most relevant evidence is "the evidence of record from the time of the veteran's application" for service connection. Fenderson, 12 Vet. App. at 127. In reviewing the evidence of record, the Board finds the 10 percent initial rating award, effective August of 2005, was appropriate. Under 38 C.F.R. § 4.71(a), in order to receive a 20 percent rating, there must be "muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis." Alternatively, a twenty percent rating can be met by a showing of IVDS, or through range of motion testing where forward flexion of the thoracolumbar spine 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. The Veteran has not contended his range of motion testing was inaccurate. Rather, he noted his back was getting worse every day, and expressed that he has scoliosis. See NOD February 2006. The evidence of record does not establish any of the alternatives, however. Further, the Veteran's claim that a 50 percent rating is warranted is applicable only with unfavorable ankylosis of the entire thoracolumbar spine, which has not been shown in any rating period of this appeal. The record reveals the Veteran did not exhibit muscle spasm or guarding. While he has scoliosis, it is not caused by muscle spasm or guarding but resulted from one leg being shorter than the other as a consequence of the motorcycle accident. In July 2005, the VA medical history discloses low back pain, and scoliosis with spasm. October 2005 VA medical records indicate the Veteran reported his back pain varied from 4-8 on a scale of 1-10. He expressed constant aching, exacerbated by movement. X-rays indicated DJD of the lower spine. In a January 2006 VA disability examination of the spine, the examiner noted the Veteran did not use a brace, cane or other assistive device. The Veteran's left lower extremity was measured one inch shorter than the right due to shortening of the left leg. The examiner opined that the Veteran's low back pain became more pronounced after August 2005 due to the Veteran completing drug abuse treatment, thereby becoming more aware of his back pain. In measurement findings, forward flexion beyond 70 degrees was associated with pain. Backward extension, lateral flexion and lateral rotation on both sides were all measured at 30 degrees. Straight leg testing was measured to 90 degrees on either side caused exaggerated pain. X-rays of the lumbosacral spine from August 2005 revealed intervertebral spaces between L4-S1 narrowing with normal lordosis. A diagnosis of DJD was made. The exam was negative for muscle spasm or guarding. However, the only back spasm history of record refers to his treatment in service. When he was examined in 2005, the Veteran reported he had not been in a clinic for 14 years. At the time of his VA examination, however, his range of motion testing and lack of spasm / guarding support only a rating of 10 percent. Additionally, in the hearing before the DRO, no evidence regarding spasm or factors suggesting meeting a higher criteria were presented. August 3, 2009 toApril 25, 2016 Effective April 20, 2011, VA assigned the Veteran a 20 percent rating for his low back disability. The RO assigned the date based on an April 2011 VA exam. A prior VA spine examination was conducted in August 2009. The Veteran stated he had flare ups of the lumbar back every week, lasting several hours. Range of motion testing revealed his lumbar spine had 70 degrees of flexion, 30 degrees of extension, 30 degrees of lateral flexion right and left, and 30 degrees of rotation to right and left. There was objective evidence of pain on active range of motion. The examiner noted that Veteran had tenderness of the lumbar spine with guarding, and there was pain with motion. There was no evidence of radiculopathy, spasm or atrophy noted. There was also no evidence of kyphosis, lordosis, or ankylosis. Scoliosis was again noted. The examiner reported that guarding was not severe enough to be responsible for abnormal gait or spinal contour, indicating the Veteran's posture and gait were normal. In September 2009, the Veteran testified before a DRO. He indicated that twice a day he takes a muscle relaxer. He again indicated his symptoms were getting worse, and that he was not working. In November 2009, the Veteran testified before the Board, indicating he has muscle spasms that affect his lower back and upper legs. The next month, the RO denied a rate increase, indicating there was no evidence showing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a combined range of motion of the thoracolumbar spine 120 degrees or less. Additionally, the decision noted that muscle spasm or guarding were not severe enough to result in an abnormal gait or spinal contour. In reviewing the evidence, the Board finds that a reasonable doubt exists as to the degree of guarding or spasm the Veteran exhibited. First, it is unclear to what extent the Veteran's taking of muscle relaxers at the time of his VA examination would have impacted the results. Second, the Veteran already has scoliosis, and the examiner did not discuss why the guarding or spasm were not severe enough to result in abnormal spinal contour, marking only "no." Third, the Veteran had been noted on previous VA examinations to present with an abnormal gait, and it is not clear if the Veteran was observed with his orthopedic shoes on or not. There was no discussion about how spasm or guarding are measured where abnormal contour is already present due to scoliosis, or conversely, whether the scoliosis contributed to the spasm or guarding. As noted above, the Veteran's symptomatology under the rating criteria did not meet the next higher disability level. However, the Board finds that the evidence, both medical and lay, stands in relative equipoise with respect to the issue of whether a higher rating is warranted for this period, and finds a 20 percent rating is supported from the date of the Veterans' August 3, 2009 exam, but no higher. April 26, 2016 to the present In June 2016, a RD awarded a 40 percent evaluation for the Veteran's DJD, effective April 26, 2016. With the Veteran's 2006 NOD maintaining entitlement to 50 percent still active, the Board next addresses this issue. In his testimony before the Board in November 2010, the Veteran expressed hope that an MRI scheduled after his appearance before the Board would be helpful to his claim, and the Board left the record open for 60 days for submission of the imaging study. In December of 2010, an MRI was conducted. Some disc bulging and narrowing of the spinal canal were noted, but no significant central stenosis or neural foraminal narrowing. Mild multilevel degenerative changes were noted. The interpreting physician recommended an additional X-ray due to limitations of the MRI, and in January 2011, whole body imaging was performed. It revealed degenerative osteoarthritic changes of the thoracic spine, AC and knee joints, and a deformity of the left femur. The Veteran's spouse and daughter submitted statements in January 2011. His spouse indicated she would help him get around and get dressed, and his daughter stated he has severe back pain. Another VA examination for the Veteran's DJD was performed in April 2011. Kyphosis, lordosis, or ankylosis were not present. Gait was noted as abnormal, with an antalgic list to the left. Spasm was not noted, but guarding on the left and right were found. Flexion was measured at 40 degrees, extension to 14 degrees, left lateral rotation to 14 degrees, right to 18 degrees, and right lateral rotation to 15 degrees. Combined range of motion testing therefore exceeded 120 degrees. Based on the criteria, the Board observes the rating of 20 percent is appropriate at this stage. See Note (2), supra, 38 C.F.R. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine. In September 2015, the Veteran submitted a private treatment record from his chiropractor, who noted regional impairment in the lumbar area was 25 percent, and that based on the Veteran's survey to the pain questionnaire, he had "extreme impairment." The chiropractor noted moderate loss of the lumbar lordosis, and lumbar spondylosis at the L-3 / L-4, and l-4 / L-5. In April 2016, the final VA DJD examination of record was performed. Forward flexion was measured to 40 degrees, extension to 20 degrees, lateral flexion right at 25 degrees and left at 20 degrees, left and right lateral rotation both at 10 degrees. At this examination, muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour was recorded. Ankylosis or IVDS were not found. Based on the Veteran's forward flexion of the thoracolumbar spine measurement of 30 degrees or less, the Board finds the April 26, 2016 date appropriate. As previously noted, unfavorable ankylosis of the entire thoracolumbar spine was not shown, nor has the Veteran, or any medical evidence, suggested he has ankylosis. Therefore, a 50 percent disability evaluation is not warranted. Total Disability for Individual Unemployability The Veteran seeks entitlement to an earlier effective date for the award of TDIU. He first made a formal claim for TDIU in January 2011. In February of 2011, the Board remanded for the RO to deliver the appropriate notice to the Veteran. Additionally, the Board made the issue part of the increased rating claim as part of its remand order. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU claim is part of an increased rating claim when such claim is raised by the record); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). 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 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Even if the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). For claimants who fail to meet the percentage thresholds set forth in § 4.16(a), the matter of a TDIU rating should be referred to the Director of the Compensation and Pension Service for extraschedular consideration "when it is found that the claimant is unemployable by reason of service-connected disabilities." 38 C.F.R.§ 4.16(b). The central inquiry is determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). There is evidence in the file showing the Veteran was employed during the period on appeal. In his January 2011 application for compensation based on unemployability, he reported $15,000 in self-employment income for the prior year. The Veteran's evidence has additional complications; in his DRO hearing, the Veteran indicated he retired from his position as an electrician at a VA hospital in the 1990's due to contracting meningitis and that his back condition was not a factor in retiring from civil service. Later in his testimony before the Board, the Veteran stated "Well in the last record I had read they said I was not working because I had hepatitis. That's not true. Well, the reason I stopped because I can't work because of back pain and squatting and all the work that I do." The Veteran testified additionally that it had been "10 or 15 years now" since he worked. In his VA examination in January of 2006, however, the Veteran did not mention his back as a factor in retiring, telling the physician he has been disabled from the VA because of the past history of cryptococcal meningitis from 1991. The mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a TDIU rating. Van Hoose at 363. (finding that the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability). In other words, the fact that the Veteran was able to maintain employment is some indication that he is capable of performing the physical and mental acts required by employment. In reviewing the record, an August 2005 CAPRI records indicate the Veteran was seeking substance abuse treatment for his 15 year-long cocaine addiction. Records reflect the Veteran completed 14 years of education, and he reported that he owned his own business. He reported spending over $300 on drugs in the past month, and the social worker noted that someone else contributes the majority of his financial support. In the past three years his usual employment pattern was described as consisting of retirement and disability payments, reporting his income over the past month as $1,300 from pension benefits or social security for a total of $1,300.00. The Social Security Administration reported in September 2015 his disability records had been destroyed. November 2010 VA CAPRI medical records document that the Veteran's back pain could affect his general activity; however, it was not noted to affect his capacity for normal work. In March, 2011, the Veteran was seen at the VA for back pain. The provider noted there were minimal degenerative changes of the lumbosacral spine, and moderate DJD of the lumbar spine with scoliotic curvature likely secondary to the leg length discrepancy. Remarking on occupational activities, the record reveals his condition may present decreased mobility problems, problems with lifting and carrying, and lack of stamina, and suggested he be assigned different duties. By June 2011, however, his treatment records indicate his back condition would have "no effect" on usual work conditions if lifting restrictions were in place. However, the Veteran's comorbid psychiatric issues as well as liver disease markedly limit his employability; psychiatry visits over time note marked limitation in ability to function in workplace setting. There are no relevant medical or lay entries after 2011 until the Veteran submitted an additional claim for hearing loss in 2014. 38 C.F.R. §§ 4.1 and 4.2 requires VA to view each disability "in relation to its history" to "accurately reflect the elements of disability present," respectively. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was "only entitled to disability compensation for the period after ... the date he filed his original claim for benefits," VA regulations still require the disability to be "evaluated in light of its whole recorded history"). As previously noted, the Veteran was service connected at 20 percent for impairment of femur and 10 percent for scaring, both effective in 1979, and 10 percent for each knee since 1982. Neither of these disabilities prevented the Veteran from working full-time as an electrician, a job he held until contracting meningitis. In 2005, the Veteran filed his claim for low back disability. The credible evidence of record indicates the Veteran retired 14 years earlier due to his non-service connected meningitis in 1991, which is what his 2006 VA examination indicates, as well as his testimony at the DRO hearing. The Board finds this evidence more credible than later assertions by the Veteran. Statements made in furtherance of medical care carry a high degree of reliability, see White v. Illinois, 502 U.S. 346, 355-56 (1991), and there is no indication the audio transcription of the DRO hearing was so inaccurate as to render a totally different meaning to the transcription. The Veteran has not While the Veteran's back issues undoubtedly became more significant later, VA's Schedule for Rating Disabilities contemplates average impairment in earning capacity due to that disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In reviewing the evidence of record, the Board finds the award of TDIU is supported from June, 2011 because this is the first time credible medical evidence established the Veteran may be unemployable due to a range of other factors in addition to his DJD. Additionally, the Board notes the Veteran is not service connected for liver disease, and until 2015, was not service connected for any psychological condition. The record reflects that the Veteran maintained gainful employment prior to January 1, 2011. The Board notes that substantially gainful employment is defined as an amount of earned annual income that exceeds the poverty threshold determined by the United States Department of Commerce, Bureau of the Census. See 38 C.F.R. § 4.16 (a). For a family of two, his income in 2010 exceeded the $14,676.00 poverty threshold set by the Bureau of Census. While not dispositive of the time frame from January 1, 2011 to April 20, 2011, the Veteran's income is relevant in determining his ability to work. Based on the evidence of record and history of the Veteran, the Board finds the Veteran was not entitled to TDIU before the effective date established by the RO. . ORDER Entitlement to an initial disability rating in excess of 10 percent from August 25, 2005, 2011 is denied. Entitlement to a rating of 20 percent for DJD from August 3, 2009 is granted. Entitlement to a disability rating exceeding 40 percent after April 26, 2016 for DJD is denied. Entitlement to TDIU prior to April 20, 2011 is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs