Citation Nr: 18143213 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 11-19 888 DATE: October 18, 2018 ORDER Entitlement to a rating in excess of 20 percent prior to February 20, 2018, for a back disability is denied. Entitlement to a rating in excess of 40 percent since February 20, 2018, for a back disability is denied. Entitlement to a separate rating of 10 percent, and no higher, for right lower leg sciatic radiculopathy from April 9, 2014, to July 19, 2015, is granted. Entitlement to an increased rating in excess of 10 percent since July 20, 2015, for right lower leg sciatic radiculopathy is denied. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) prior to July 19, 2011, is granted. FINDINGS OF FACT 1. Prior to February 20, 2018, the Veteran’s back disability was not manifest by forward flexion of the thoracolumbar spine limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or any incapacitating episodes. 2. Since February 20, 2018, the Veteran’s back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or any incapacitating episodes. 3. From April 9, 2014, to July 19, 2015, the Veteran’s lumbar spine disability was associated with right lower leg sciatic radiculopathy that was manifested by mild, incomplete paralysis. 4. The Veteran has exhibited radiculopathy consistent with mild incomplete paralysis in the right lower extremity; symptoms consistent with moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, and complete paralysis have not been demonstrated. 5. Prior to July 19, 2011, the Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 20, 2018, the criteria for an evaluation in excess of 20 percent for a back disability were not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242 (2017). 2. Since February 20, 2018, the criteria for an evaluation in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242 (2017). 3. The criteria for a rating of 10 percent for right lower leg sciatic radiculopathy were met from April 9, 2014, to July 19, 2015. 38 U.S.C. §§1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.7, 4.124a, Diagnostic Code 8520 (2017) 4. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2017). 5. Prior to July 19, 2011, the criteria for entitlement to TDIU were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to July 2008. The Veteran testified at an April 2014 Board hearing before the undersigned Veterans Law Judge (VLJ). In an August 2017 decision, the Board granted entitlement to TDIU, effective July 19, 2011, and remanded the Veteran’s claim for an increased rating for her back disability and entitlement to TDIU prior to July 19, 2011. In a July 2018 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran an increased rating of 40 percent for her back disability, effective February 20, 2018. However, as the highest possible rating for this disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Back Disability Disabilities of the spine are rated under either the General Formula or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. Prior to July 20, 2015, the Veteran’s back disability was rated under Diagnostic Code 5241, Spinal Fusion, and since the July 20, 2015, the Veteran's back disability has been rated under Diagnostic Code 5243, Intervertebral Disc Syndrome. Despite the differing Diagnostic Codes, the Veteran’s back disability has been assessed pursuant to the General Formula for Diseases and Injuries of the Spine (General Formula). Under the General Rating Formula, a 20 percent disability rating is assigned where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 disability rating is appropriate where there is evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted where the disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating contemplates unfavorable ankylosis of the entire spine. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. IVDS can, alternatively, be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 is the method that should be utilized. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the Formula for Rating IVDS on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Prior to February 20, 2018 The Veteran has asserted that she is entitled to a rating in excess of 20 percent for her back disability prior to February 20, 2018. During an April 2010 VA examination, the Veteran reported significantly increased low back pain for the past year and half. On examination, the Veteran had flexion to 40 degrees with reported increased pain at 10 degrees; extension to 20 degrees with reported increased pain at 5 degrees; left side bending to 80 degrees with reported pain at 15 degrees; right side bending to 20 degrees with reported pain at 20 degrees; left and right rotation to 20 degrees with reported pain at 20 degrees. Despite the Veteran's reports of pain, the examiner noted that there was no objective evidence of pain or painful motion during the examination. While the Veteran the Veteran described an occasional pain radiating to the back of her right thigh, strength testing was normal, she had reflexes of two out of four in her bilateral knees and ankles, sensory examination was normal, the straight leg raise test was negative, and the examiner noted no radicular pain below the knee bilaterally. The Veteran reported an increase in pain after standing for more than 30 to 45 minutes or sitting for more than 20 minutes and reported that she could walk for about 45 minutes before needing to rest. However, the examiner opined that the Veteran had no additional functional limitations, including no additional lost range of motion during flare-ups or secondary to repetitive use of the joint. During a November 2011 VA examination, the Veteran reported constant chronic pain described as five out of 10. She reported flare-ups after traveling too long, sitting too long, and walking too long. Physical examination revealed flexion to 40 degrees with pain at 20 degrees, extension to 20 degrees with pain at 0 degrees, right and left lateral flexion to 20 degrees with pain at 10 degrees, right and left lateral rotation to 30 degrees with pain. The Veteran completed repetitive use testing with no additional lost range of motion. The examiner described the Veteran’s functional loss as movement than normal and pain on movement. The examiner noted the Veteran had numbness in her right lower extremity, but the examiner did not find that any of the Veteran’s lower extremity nerve roots were involved in radiculopathy. At the time of the examination, the Veteran did not have a diagnosis of IVDS. During a May 2013 VA examination, the Veteran described flare-ups at almost all times, stating that sleeping, sitting, standing for long causes discomfort. On examination, the Veteran had full range of motion in all planes with no objective evidence of painful motion. She completed repetitive use testing without any additional lost range of motion. The Veteran had no radicular pain, or signs or symptoms indicating radiculopathy. The examiner opined that the Veteran did not have IVDS and no imaging study documented arthritis. In a June 2013 addendum opinion, a VA examiner opined that the Veteran’s back disability was stable, her reflexes were normal, and she had full, normal range of motion in her back. In an additional August 2013 addendum opinion, an additional VA examiner reviewed the May 2013 VA examination and opined that the Veteran had no additional functional loss during flare-ups or after repetitive use. During a July 2015 VA examination, the Veteran reported pain reduction from nine to six or seven out of 10, but stated that pain still had an impact on sleep, and caused numbness in her buttocks and legs with prolonged sitting, and caused migraines and back spasms. During flare-ups, she stated that she had to utilize tools to put on socks and shoes. Objective testing revealed 60 degrees of flexion, 10 degrees of extension, 25 degrees of right lateral flexion, 20 degrees of left lateral flexion, 25 degrees of right lateral rotation, and 30 degrees of left lateral rotation. The examiner found that the Veteran had functional loss of limited range of motion with pain. The Veteran had pain on weightbearing. The examiner noted flare-ups, and estimated that during a flare-up the Veteran would have 50 degrees of flexion, 5 degrees of extension, 20 degrees of right lateral flexion, 15 degrees of left lateral flexion, 20 degrees of right lateral rotation, and 25 degrees of left lateral rotation. The Veteran had reduced strength of four out of five in her right ankle dorsiflexion and right great toe extension, and decreased sensation in her right foot and toes. The straight leg raise test was positive on the right. She described mild paresthesias/dysesthesias and numbness in her right lower extremity. Overall, the examiner opined that the Veteran had mild sciatic nerve radiculopathy in her right lower extremity. The examiner gave the Veteran a diagnosis of IVDS, but reported that she had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. Based on a review of the above evidence, the Board finds that the evidence demonstrates that the Veteran’s service-connected back disability is not manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, ankylosis thoracolumbar spine; neurological abnormalities (other than radiculopathy of the lower right extremity, for which service connection has already been granted); or IVDS with incapacitating episodes. Flexion was, at worst, to 40 degrees and there is no indication that there is any additional functional loss that more nearly approximate or equate to limitation of flexion of the thoracolumbar spine to 30 degrees or less, or ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, a rating higher than 20 percent is not warranted under the General Rating Formula. The Board recognizes that the Veteran reported pain on flexion beginning at 10 degrees during the April 2010 VA examination; however, the examiner noted no objective evidence of pain or painful motion and the Veteran was still able to achieve 40 degrees of flexion. Likewise, the November 2011 VA examiner noted pain on flexion at 20 degrees; however, the Veteran was still able to achieve 40 degrees of flexion. Thus, the Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the assigned 20 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. Accordingly, the preponderance of the evidence is against assignment of an increased evaluation in excess of 20 percent for the Veteran’s service-connected degenerative disc disease prior to February 20, 2018. Since February 20, 2018 The Veteran has asserted that she is entitled to a rating in excess of 40 percent for her back disability since February 20, 2018. During a February 2018 VA examination, the Veteran reported that she could walk three to four miles at a time, but was not able to run. She reported no flare-ups and described her functional loss as chronic daily pain that was worse with some activities. Range of motion testing showed forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. The examiner opined that the abnormal range of motion alone did not contribute to any functional loss, but the Veteran had pain in all planes of motion, which did contribute to functional loss. The Veteran had no additional lost range of motion after repetitive use testing. The Veteran reported pain after repeated use over time, but did not describe any additional lost range of motion. Muscle strength testing was normal and she had no muscle atrophy. Her reflexes were normal, but she had decreased sensation in the right lower leg and ankle, and right foot and toes. The straight leg raise test was negative. The Veteran reported mild paresthesias or dysesthesias and numbness in her right lower extremity. The examiner opined that the Veteran had mild sciatic radiculopathy in the right lower extremity. The examiner found that the Veteran had IVDS, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. Finally, the examiner reported the examination was active and the Veteran had pain on weightbearing. A passive examination was clinically inappropriate, and a non-weightbearing examination was impossible for the axial skeleton. The Board finds that the evidence demonstrates that the Veteran’s service-connected back disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine; neurological abnormalities (other than radiculopathy of the lower right extremity, for which service connection has already been granted); or IVDS with incapacitating episodes. Flexion was, at worst, 30 degrees. There is no indication that there is any additional functional loss that more nearly approximates or equates to unfavorable ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, a rating higher than 40 percent is not warranted under the General Rating Formula. The Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the assigned 40 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. Accordingly, the preponderance of the evidence is against assignment of an increased evaluation in excess of 40 percent for the Veteran’s service-connected degenerative disc disease since February 20, 2018. 2. Lower Right Extremity Radiculopathy In an August 2015 rating decision, the AOJ granted a separate 10 percent rating for right lower extremity radiculopathy, effective July 20, 2015. The Veteran seeks a disability rating in excess of 10 percent for her service-connected right lower extremity radiculopathy. Specifically, the Veteran contends that her right lower extremity radiculopathy is more severe than reflected by her currently assigned disability rating. The Veteran’s service-connected right lower extremity radiculopathy is evaluated under Diagnostic Code 8520. Mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. During an April 2010 VA examination, the Veteran reported an occasional pain radiating down the back of her right thigh; however, strength testing was normal, the Veteran had reflexes of two out of four in her bilateral knees and ankles, a sensory examination was normal, and the straight leg raise test was negative. During a November 2011 VA examination, the examiner noted the Veteran had numbness in her right lower extremity. Objective examination showed normal strength, no muscle atrophy, hyperactive reflexes, normal sensation, and a negative straight leg raise test. Despite the Veteran's complaint of numbness, the examiner did not find that any of the Veteran’s lower extremity nerves roots were involved in radiculopathy. The Veteran denied radicular pain in a February 2012 VA treatment record. A May 2013 VA examiner reported that the Veteran's objective testing was normal, and she had no radicular pain, or signs or symptoms indicating radiculopathy. The Veteran again denied radicular symptoms in a September 2013 VA treatment record. During the April 9, 2014 Board hearing, the Veteran testified that she experienced intermittent pain and aching radiating down into her legs. See April 2014 Hearing transcript (p9). The July 2015 VA examiner found reduced strength of 4 out of 5 in her right ankle dorsiflexion and right great toe extension, and decreased sensation in her right foot and toes. The straight leg raise test was positive on the right. She had mild paresthesias/dysesthesias and numbness in her right lower extremity. Overall, the examiner opined that the Veteran had mild sciatic nerve radiculopathy in her right lower extremity. Similarly, a February 2018 VA examiner found muscle strength testing was normal, and the Veteran had no muscle atrophy. Her reflexes were normal. She had decreased sensation in the right lower leg and ankle, and right foot and toes. The straight leg raise test was negative. The Veteran reported mild paresthesias or dysesthesias and numbness in her right lower extremity. The examiner opined that the Veteran had mild sciatic radiculopathy in the right lower extremity. Prior to an April 2014 Board hearing, while the Veteran had reported occasional pain and numbness radiating down her right leg, see April 2010 and November 2011 VA examinations, she had also denied any radicular symptoms at other times, see February 2012 and September 2013 VA treatment records. Additionally, VA examiners in April 2010, November 2011, and May 2013 found no evidence of radiculopathy. However, the Board finds that the Veteran's reports of radicular symptoms during the April 9, 2014, Board hearing are sufficient to warrant a separate rating for right lower leg sciatic radiculopathy. The Veteran is competent to report her experience of radiating pain. Layno v. Brown, 6 Vet. App. 465 (1994). And although there is no medical evaluation of the Veteran's complaints, there is no indication that the Veteran's symptoms decreased between her Board testimony and her subsequent July 2015 VA examination, after which examiner found evidence of mild sciatic nerve radiculopathy in the Veteran's right leg. Considering the severity of the Veteran's symptoms, as demonstrated by the VA examinations and the Veteran’s subjective report of symptoms, the Veteran has suffered from, at most, mild radicular symptoms during the entire appeal period. As such, the Board finds that the Veteran’s symptoms of right lower extremity radiculopathy most closely approximate the criteria contemplated for mild incomplete paralysis during the entirety of the appeal period. The Board notes that the Veteran’s service-connected right lower extremity radiculopathy has not been shown to involve any other factors warranting evaluation under any other provisions of VA’s rating schedule at any point. Accordingly, the Board finds that an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is not warranted. The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 3. Extraschedular TDIU prior to July 19, 2011 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable due to service-connected disabilities, VA shall submit the case to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). After a review of the evidence of record, the Board finds that entitlement to TDIU for the period on appeal is warranted. The Veteran’s combined evaluation for VA compensation was a combined 50 percent from March 27, 2009, and 60 percent from March 31, 3011 until July 17, 2011. Therefore, the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Pursuant to the Board’s prior remand, the AOJ has obtained an advisory opinion from the Director of the Compensation Service (the Director) in October 2018, who determined that an extraschedular TDIU was not warranted prior to July 19, 2011 based on the Veteran’s service-connected disabilities. Because the Director determined that an extraschedular evaluation was not warranted, the Board now has jurisdiction to decide the extraschedular claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). As the Board noted in its prior decision, the Veteran graduated from high school and has completed work towards a bachelor’s degree in orthoptics (the study or treatment of disorders of vision). The evidence reflects the Veteran was both working and attending nursing school prior to July 19, 2011. She alternatively worked as a home health aide and certified nursing assistant beginning in September 2009, varying from part-time to full-time basis. The Federal Circuit has held that 38C.F.R. §4.16(b) “does not require the veteran to show 100 percent unemployability in order to prove that he cannot ‘follow substantially gainful occupation.’” Roberson v. Principi,251 F.3d 1378, 1385 (Fed. Cir. 2001). Instead, “The use of the word ‘substantially’ suggests an intent to impart flexibility into a determination of the veteran’s overall employability.” Id. Additionally, employment “in a protected environment” is not sufficient to establish substantially gainful occupation. 38C.F.R. §4.16(a). Although the meaning of “employment in a protected environment” is not clear from the plain language of § 4.16, such employment frequently involves accommodations for the employee. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391(2017). Although the Veteran in this case maintained some degree of employment prior to July 19, 2011, the evidence reflects she was unable to secure and follow substantially gainful occupation due to her service-connected disabilities. In a September 2009 VA treatment record, the Veteran reported that she had started school, but had to stop working in a nursing home to give her back a chance to improve. In a January 2010 statement included on a VA Form 9, the Veteran reported that constant pain prevented her from being able to perform work or school tasks, made it difficult to walk, prevented good sleep, and made it difficult to drive. Likewise, in a January 2011 notice of disagreement, the Veteran asserted that pain was constant and required high amounts of medication. She was unable to work as long or as hard as she had been, and was unable to sleep without sleep aids. During a May 2011 VA examination, the Veteran reported migraines two to three times per month, with prostrating attacks lasting two hours to all night. The Veteran reported she was employed part-time and had lost with two weeks lost due to headaches. The examiner opined that the Veteran was incapacitated from doing normal activities during a migraine attack. Although it was provided after the period currently on appeal, the Board finds a May 2012 VA Vocational Rehabilitation evaluation applicable, and especially persuasive, because the Veteran’s employment at the time of the evaluation was virtually the same as her employment during the period currently on appeal. The reviewing certified rehabilitation counselor opined the Veteran’s part-time employment as a home health aide and certified nursing assistant was “not considered suitable employment since it aggravates [her]service-connected disabilities” and was not sufficient to overcome her impairment to employability. Based on this evidence, and affording all benefit of the doubt to the Veteran, the Board is persuaded the Veteran’s employment during the period on appeal did not constitute substantially gainful employment. The evidence supports the Veteran’s contentions that her service-connected disabilities, specifically her back disability and her migraine headaches, rendered her unable to complete her occupation. Therefore, the medical evidence reflects the Veteran’s service-connected disabilities significantly impede her ability to maintain manual or sedentary employment. Based on the foregoing, and affording all benefit of the doubt to the Veteran, she was unable to secure and follow substantially gainful occupation due to her service-connected disabilities, including her back disability and migraine headaches. Accordingly, TDIU is granted prior to July 19, 2011. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel