Citation Nr: 18143479 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-15 468 DATE: October 19, 2018 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine, including as due to service-connected lumbar spine disability, is denied. Whether the February 1993 rating decision that denied service connection for right knee disorder contained clear and mistakable error (CUE) is denied. Entitlement to service connection for tinnitus is granted. Entitlement to a rating higher than 20 percent for chronic orthopedic manifestations of lumbar spine DDD, status post-operative, for the period June 30, 2014 to April 19, 2015, and higher than 10 percent since April 19, 2015, including the propriety of a reduction from 20 to 10 percent disabling, is denied. Entitlement to a total disability rating due to service-connected disability (TDIU) for the period prior to July 6, 2017 is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for erectile dysfunction is remanded. The propriety of reducing VA disability compensation due to receipt of Drill Pay is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that DDD of the cervical spine had onset in active service, is otherwise causally connected to active service, or is due to or chronically worsened by a service-connected disability. 2. The February 1993 rating decision that denied service connection for right knee disorder considered the correct facts and did not incorrectly apply any pertinent law or regulation. 3. The evidence of record is at least in equipoise as to whether tinnitus had onset during active service. 4. For the period from June 30, 2014 to April 19, 2015, the orthopedic symptoms of the Veteran’s lumbar spine DDD manifested with motion on forward flexion greater than 0 to 30 degrees but not greater than 0 to 60 degrees, and combined range of motion (CROM) not greater than 120 degrees. As of April 20, 2015, it manifested with motion on forward flexion greater than 0 to 60 degrees, and CROM greater than 120 degrees. 5. The weight of the evidence is against a finding that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the period prior to July 6, 2017. 6. The Veteran has been gainfully employed since July 6, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for DDD of the cervical spine have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a), 3.310 (2017). 2. The February 1993 rating decision that denied service connection for right knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. 3. The criteria for entitlement to service connection for right knee disorder on the basis of CUE in the February 1993 rating decision have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.105, 3.303, 3.304(b). 4. Affording the Veteran all benefit of the doubt, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a). 5. The criteria for entitlement to a rating higher than 20 percent for chronic orthopedic manifestations of lumbar spine DDD for the period June 30, 2014 to April 19, 2015, and higher than 10 percent since April 19, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.1, 4.10, 4.40, 4.45, 4.50, 4.71a, Diagnostic Code (DC) 5242. 6. The criteria for a TDIU for the period prior to July 6, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1988 to May 1992. Afterward, he was a member of the U.S. Army Reserve (USAR), during which he had active service from January 2011 to December 2011. That tour included service in Iraq from March 2011 to October 2011. Service Connection Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Arthritis and organic diseases of the central nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA deems tinnitus to be an organic disease of the nervous system. See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was “noted” during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has given full consideration to the Veteran’s lay testimony of his symptoms, to include date of onset. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a). 1. Entitlement to service connection for DDD of the cervical spine At the Board hearing, the Veteran conceded that he did not seek treatment for his claimed neck disorder during his active service. Instead, he based on his claim on the rigors of his service, including in Iraq. He testified that he was truck driver, and that he had to wear a heavy helmet while performing those duties. Further, the ride in a Humvee entailed constant bouncing on a seat that was only minimally padded. The Veteran testified that a doctor theorized that those conditions are what caused the bulging disc in his neck. See 04/20/2018 Hearing Testimony, P. 14-18. The April 2014 examination report (04/14/2014 VA Examination, P. 12-20) reflects that the examiner conducted a review of the claims file and noted a diagnosis of record of cervical strain entered in 2011. The examiner noted that the Veteran complained that his wear of a heavy helmet and the other weight he had to carry during his active service caused his cervical spine DDD. The examiner noted that the Veteran made no mention that his cervical spine DDD was due to his lumbar spine disorder. Id., P. 13. Based on the review of the claims file and the Veteran’s medical records, the examiner opined that it was not at least as likely as not that the cervical spine disorder had onset in active service, manifested within one year of active service, or that it was due to or chronically worsened by the service-connected lumbar spine disability. See 04/23/2014 Medical Treatment-Government Facility, P. 7. The examiner noted that the May 2013 neurological consult evaluated the Veteran’s cervical spine disorder, and his VA physicians did not indicate any linkage, causative or aggravating, between it and the lumbar spine disorder. The examiner reviewed the claims file, examined the Veteran, and provided a rationale for the opinion rendered. Hence, the Board finds the opinion highly probative and attaches significant weight to it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the examiner noted, there is no evidence that cervical spine DDD manifested to at least a compensable degree within one year of the Veteran’s separation from active service. An April 2013 MRI examination report reflects that minimal degenerative changes were shown at C5-6. See 04/30/2014 CAPRI, 2nd Entry P. 7-8. Not only did the Veteran not seek any treatment for neck symptoms during his tour in Iraq, he did not indicate any problems with it on his Post-Deployment Assessment. See 07/23/2014 Military Personnel Record. He did not report any history of neck symptoms in 1992, and his spine was assessed as normal at separation in 1992. See 08/17/1992 STR-Photo Copy, P. 41, 43. Further, the Veteran testified that the VA physician who theorized on the impact of his use of a heavy helmet was a Dr. R. Dr. R was a VA neurologist who evaluated the Veteran. Although he ordered the MRI that revealed the cervical spine DDD, Dr. R did not provide any opinion on the etiology of it, even though he indicated that the Veteran’s lumbar spine disability rendered him physically unfit for further membership in the USAR. See 04/30/2014 CAPRI, 2nd Entry; 06/06/2016 CAPRI; 2nd Entry, P. 42, 550. The Veteran is competent to testify to what a physician told him. See 38 C.F.R. § 3.159(a)(2). Nonetheless, the Board finds that the weight of the evidence is against the accuracy of what the Veteran states he was told. Furthermore, regarding the Veteran’s personal opinion on the issue, the Board finds that opining on the etiology of DDD, especially years after the fact, requires medical training. See Jandreau, 492 F. 3d 1372; see also 38 C.F.R. § 3.159(a)(1). There is no evidence that the Veteran has medical training. Hence, his opinion does not constitute probative evidence on the issue. The Board finds that while there is evidence of a currently diagnosed cervical spine disorder, proof of the first element for service connection, the preponderance of the evidence is against a finding that a cervical strain or DDD had onset in active service, manifested to a compensable degree within one year of service, or is otherwise causally connected to active service. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). As for secondary service connection, in addition to a currently diagnosed disorder, service connection is in effect for lumbar spine DDD. Hence, the first two elements are shown by the evidence of record. As discussed above, however, the weight of the evidence is against a finding that the cervical spine disorder is due to or has been chronically worsened by the lumbar spine disorder. 38 C.F.R. § 3.310. Hence, the Board finds against the claim on all bases. 2. Whether the February 1993 rating decision contained clear and mistakable error The Veteran asserts that in 1993 the RO erroneously determined that it was his right knee that was injured in high school. The Veteran testified that both knees were injured playing football, but it was the left knee that was injured prior to service, while he injured the right knee playing football in service. See Hearing Testimony, P. 7-10. Once a rating decision is final, they may not be revised except on the basis of clear and unmistakable error. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. CUE means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’“Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear and unmistakable evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). To establish CUE the moving party must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be “undebatable” and of the sort “which had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). The laws and regulations that pertain to service connection are have not changed in any material way since 1993. So, all cites are to current regulations. The Veteran appealed the 1993 decision in question. The RO issued a Statement of the Case in June 1996. The Veteran did not perfect his appeal of the decision, however, as a Substantive Appeal was not received. See 38 C.F.R. §§ 19.32, 20.200, 20.302. Hence, the February 1993 rating decision became final. See 38 C.F.R. § 20.1103. The Veteran has asserted that the evidence of record in fact showed that his right knee was aggravated in service. Thus, that theory of error may not again be raised. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc). The assertion that the RO considered the incorrect lower extremity is a distinct and different theory and will be addressed. Although different, the Veteran’s assertion is baseless, as the records of his examination at entry clearly indicate that it was his right knee that was noted and evaluated, including an x-ray. See 08/17/1992 STR-Photocopy, P. 47, 49, 53. Hence, all of the relevant correct facts were before the rating board in 1993. Moreover, based on such facts, there can be no finding that the RO’s decision was undebatably incorrect. Put another way, there was no erroneous application of law shown in the rating decision in question. Rather, a reasonable weigher of facts could have arrived at the conclusion reached, that service connection was not warranted. 3. Entitlement to service connection for tinnitus The Veteran indicated that during active service that he had ringing in the ears but there was no in-service diagnosis of tinnitus. However, the Veteran indicated on his Post-Deployment Assessment that while he denied any hearing loss, he had ringing in the ears while deployed and it still bothered him. See 07/23/2014 Military Personnel Records. There is no clinical test that either diagnoses or disproves the presence of tinnitus. With some exceptions, the disorder generally is diagnosed on the basis of a claimant’s reported history. The Veteran is fully competent to report the presence of tinnitus and the date of its onset. 38 C.F.R. § 3.159(a)(2). The Board is not aware of any precedent that requires the rejection of a tinnitus claim solely on the basis that it is not associated with hearing loss. The Board acknowledges that the audiologic examiner found the results not valid due to false negative responses. See 04/11/2014 CAPRI, P. 2. This generally would mitigate against finding the Veteran’s lay reports credible but, as noted, the Veteran did report the presence of ringing in his ears immediately following his return from Iraq. Hence, the Board finds the scales are at least evenly balanced on the issue. Under these circumstances, the Veteran prevails and the claim is granted. 38 C.F.R. §§ 3.102, 3.303. (CONTINUED ON NEXT PAGE) 4. Entitlement to a rating higher than 20 percent for chronic orthopedic manifestations of lumbar spine DDD for the period June 30, 2014 to April 19, 2015, and higher than 10 percent since April 19, 2015, including the propriety of a reduction from 20 to 10 percent disabling, is denied. Legal Requirements The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals For Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion and other testing be conducted whenever possible in cases of joint disabilities. For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V. Rating Criteria Spine disabilities are rated under the General Formula. Regarding the lumbar spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 40 percent rating applies if forward flexion of the thoracolumbar spine is 0 to 30 degrees or less. A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the CROM of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Formula. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1). Historically, the previously noted February 1993 rating decision granted service connection for lumbar strain and assigned a 10 percent rating, effective in May 1992. The Veteran applied for an increased rating in June 2013. See 06/04/2013 VA 21-526b. In response thereto, an April 2014 rating decision changed the disability evaluated from low back strain to osteoarthritis of the lumbar spine; granted an increased rating from 10 to 20 percent; and, granted service connection for associated lumbar radiculopathy of the RLE, both effective June 4, 2013. See 04/30/2014 Rating Decision. The Veteran appealed other facets of that rating decision, but he did not appeal the evaluation of his lumbar spine or the initial rating of the RLE radiculopathy. See 06/30/2014 NOD. He applied for a TDIU in June 2014, which the RO deemed an application for an increased rating. See 06/30/2014 VA 21-8940. Hence, the Board finds that the current rating period on appeal started on June 30, 2014. See 38 C.F.R. § 3.400(o). Discussion As noted earlier, the Veteran’s appeal includes his disagreement with the reduction of the rating of the arthritis facet of his lumbar spine disability. The Veteran and his representative assert that the April 2015 examination was inadequate and, therefore, was not as full and complete as the 2013 examination on which the increased rating was based. See Hearing Testimony, P. 1-7. Initially, the Board notes that the 20 percent rating had been in effect for less than five years. Hence, it was not a protected rating, and was not subject to the more rigorous requirements applicable to ratings that have been in effect longer. See 38 C.F.R. §§ 3.951(b), 3.344(c). Nonetheless, as discussed below, the Board rejects the assertion that the 2015 examination was inadequate. VA outpatient records note the fact that the most prominent symptom of the Veteran’s lumbar spine disability is chronic low back pain. The Veteran’s treatment has included physical therapy, spinal injections, and use of a TENS unit with only minimal relief. The records do not, however, indicate that his ROM on forward flexion was 0 to 30 degrees or less at any time prior to April 20, 2015, the effective date of the reduction. See, e.g., 04/30/2014 CAPRI. At the Board hearing, the Veteran asserted the following deficiencies in the April 2015 examination: the examiner improperly changed his diagnosis from invertebral disc syndrome (IVDS) to osteoarthritis; the examiner checked his ROM visually instead of via use of a goniometer; and, he was not asked about the severity of his low back pain. See Hearing Testimony, P. 1-7. The examination report (04/21/2015 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran’s reported history of his low back disability, including his complaints that his symptoms had worsened. The Veteran reported that during flare-ups he could not get out of bed or move; and, to move, he had to crawl very slowly, and had to stay flat on his back where he was unable to attend to himself. He considered himself a burden on his family during flare-ups. Physical examination revealed ROM as normal in all planes without objective evidence of pain. Repetitive-use testing revealed no additional loss of ROM. The examiner identified the Veteran’s functional loss as disturbance of locomotion and interference with sitting, standing, or weight bearing. Id., P. 1-4. There was no pain or tenderness to palpation, muscle spasm, or guarding. Strength, reflexes, and sensation were all normal, and there was no muscle atrophy. Straight leg raising was negative bilaterally. The examiner noted the Veteran’s subjective report of mild intermittent RLE radicular pain; but, the examiner noted that since objective examination showed reflexes and sensation as intact, a specific nerve root could not be identified. The examiner also noted that there was not any evidence of IVDS. The examiner noted further that the Veteran occasionally used a cane for ambulation, but that he had not lost the use of his lumbar spine. Id., P. 4-8. Based on the examination findings, to include posture within normal limits and normal gain, and the Veteran’s report of his flare-ups, the examiner opined that the Veteran’s weakness and fatigability, etc., use over time, and flare-ups would result in additional loss of one degree of ROM in all spheres. Id., P. 9. The Board acknowledges that when VA affords a claimant an examination, VA must insure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board first notes, regarding the Veteran’s assertion that his diagnosis was changed from IVDS, that such is not accurate. Rather, the prior rating decisions reflect that his disability was formerly categorized as a strain. The examiner noted that adding osteoarthritis represented that there had been a progression in his disability. Concerning the adequacy of the examination, the Board has reviewed the VA examination report and finds no clear evidence that the VA examiner did not conduct the examination in an appropriate manner. The examination provided ROM measurements in degrees, and included other findings relevant to assessing the severity of the Veteran’s lumbar spine disability. Further, the examiner entered the specific findings required by Sharp v. Shulkin, 29 Vet. App. 26 (2017), that address the impact of flare-ups, etc. Since the examination report shows specific numerical measurements of lumbar spine motion in all spheres, the Veteran’s assertions alone do not represent clear evidence that the examiner did not properly perform the examination in measuring ROM. Indeed, the law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). The presumption of regularity is not absolute and may be rebutted by the submission of “clear evidence to the contrary.” Warfield v. Gober, 10 Vet. App. 483, 486 (1997). Evidence meeting such standard for rebutting the presumption has not been presented here. The objective findings on clinical examination at the April 2015 examination show that the Veteran’s lumbar disability no longer met the requirements for a 20 percent rating, as ROM was normal in all spheres. The RO, however, did not rely solely on the VA examination in reducing the rating but also considered records provided by the Social Security Administration (SSA). Those records include an examination conducted in August 2013 for that agency. The examiner noted that there was pain on motion, but that ROM was normal in all spheres. See 04/16/2015 SSA Records, 4th Entry, P. 35-38. Given the above, the preponderance of the evidence shows that the orthopedic symptoms of the lumbar spine disability, which are assessed on the basis of ROM, no longer met the requirements for a 20 percent rating, as ROM—while painful, was still normal in all spheres. See 38 C.F.R. § 4.71, General Formula. Thus, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent for the period prior to April 20, 2015, and higher than 10 percent from that date forward. 38 C.F.R. §§ 3.344, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. Given that such improved findings were shown on multiple occasions, by different examiners, they are deemed to reflect improvement under ordinary conditions of work and life, and thus the reduction is deemed proper. 5. Entitlement to a TDIU for the period prior to July 6, 2017 Applicable Legal Requirements A total rating for compensation purposes 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 service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but 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 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). Discussion The Veteran’s total combined rating for all of his service-connected disabilities was at least 70 percent at all times for the period in question. See 05/19/2015 Rating Decision-Codesheet. Hence, the Veteran meets the requirements for schedular consideration. In addition to the lumbar spine disability, service connection is also in effect for PTSD, rated 50 percent disabling; plantar fasciitis, right foot, rated 10 percent disabling; RLE radiculopathy, rated 10 percent disabling; DJD, left ankle, rated 10 percent disabling; and, gastroesophageal reflux disease, rated noncompensable. The lumbar spine disability was temporarily rated totally disabling from November 22, 2016 to February 28, 2017 for convalescence from surgery. See 03/01/2017 Rating Decision-Codesheet. Although the Veteran’s testimony at the Board hearing suggested that his PTSD symptoms impacted his employability, his overall testimony was to the effect that it is his lumbar spine disability that renders him unemployable, particularly due to his having to rely on narcotic pain relievers. See Hearing Testimony, P. 21 et seq. He testified that he last worked in December 2012, and that he stopped working because he no longer could meet the physical demands of his work as a pipeline fitter. Id. The Veteran’s last employer, however, informed VA that the Veteran worked until March 26, 2015 when he was laid off, and that disability had nothing to do with the termination of his employment. See 04/06/2015 VA 21-4192. A Form 21-4192 received by the RO that same month reflects that the Veteran stopped work in December 2012 because he was no longer able to meet Department of Transportation or OSHA requirements due to his back injury. See 04/14/2015 VA 21-4192. The RO noted that the Form was signed by the Veteran and requested that it be submitted by his former employer. See 04/23/2015 Deferred Rating, 1st Entry. The former employer resubmitted the form without any changes from the initial submission. At the hearing, the Veteran testified that he used his paychecks to determine that he last worked in December 2012. An administrative law judge (ALJ) of the SSA, in a December 2014 decision, fixed the date of the Veteran’s last employment as December 18, 2012. The ALJ noted that the Veteran worked after that date but determined that it was not gainful employment. The particulars of that finding were not set forth, and it is not clear if information from the Veteran’s last employer was considered. See 04/16/2015 SSA, P. 8. In any event, the ALJ determined that the Veteran’s disability did not render him disabled for SSA purposes, though he was no longer physically able to perform the demands of his former work. The ALJ considered the lumbar spine disability, PTSD, and anxiety disorder as severe impairments but ruled that the Veteran’s other disorders were not severe impairments and that there was no medical evidence of impairment due to them. Id., P. 8-9. As concerned the lumbar spine disability, the ALJ determined that the medical evidence before him did not show nerve root compression, spinal stenosis, or that the low back disability resulted in an inability to ambulate effectively. There was no evidence that the Veteran could not care for himself, and it was found that his acquired mental disorder did not significantly impair his ability to concentrate or follow simple instructions, and that he was capable of incidental contact with the public. The ALJ determined that the Veteran had the Residual Functional Capacity (RFC) for sedentary work as defined by applicable SSA regulations. Id., P. 10-11. The Court of Appeals For Veterans Claims (Court) recently held that the term “sedentary” has no legal significance to the issue of employability under VA regulations; it is not defined for VA employability purposes; and, when it is used, there must be an explanation as to how it is applied to a veteran’s individual case. Withers v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1054 (Aug. 10, 2018). Thus, the Board applies the ALJ’s finding no further than that the Veteran is not completely incapable of employment. Further, SSA determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). Nonetheless, the Board finds that the ALJ’s findings on the Veteran’s functional limitations are probative for VA purposes as well. The ALJ determined that, based on the medical evidence, the Veteran could occasionally balance, stoop, kneel, crawl, and climb stairs and ramps. Further, he was limited to simple tasks, could have superficial contact with coworkers and supervisors as well as incidental contact with the public. He would not be able to climb ladders, could not work around hazards or fast paced machinery, or drive as part of his duties. Id., P. 11. The ALJ’s findings are consistent with those of VA examiners. The PTSD examination noted mild memory impairment, difficulty understanding complex commands, and difficulty with relationships, adapting to stressful circumstances, including work. The examiner did not indicate that the Veteran would not be able to work. In fact, the examiner assessed Axis V, Global Assessment of Functioning as 65. See 08/07/2013 C&P Examination, Entry, P. 2. The Board notes that DSM-5, which VA implemented in August 2014, no longer uses the GAF. At the time of the August 2013 examination, DSM-IV was still the governing standard, and the GAF was relevant information. The GAF score was a scaled rating reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.” See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV). Under DSM-IV, a GAF 65 was midway of the range of 61 to 70, and was indicative of some mild symptoms (e.g., depressed mood and mild insomnia); or, some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The April 2015 VA spine examination report reflects that the examiner assessed the Veteran’s work restrictions as no heavy lifting or repetitive bending. The Veteran has repeatedly asserted that he can no longer work because of his need for opiate pain relievers that would be detected by drug tests. While that may be an accurate assertion regarding his past employment as a heavy equipment operator, it would not disqualify him from all potential employment. Further, after reporting that concern at a VA outpatient appointment, the Veteran was advised to talk with his providers about alternatives to narcotic pain relievers. See 04/016/2015 SSA, 3rd Entry, P. 14. He also testified that he previously received VA VR&E benefits and became a boat mechanic, which required positioning, etc., no longer compatible with his current lumbar spine disability. Again, the Veteran is addressing a specific type employment as opposed to employability generally. As noted, the ALJ rendered his decision in December 2014, which was prior to VA’s receipt from the Veteran’s last employer. The April 2015 VA 21-4192 from the last employer reflects the inception date of the Veteran’s employment as December 2014, but the end date as January 2013. The logical inference is that the preparer inadvertently reversed the dates, as it reflects that the Veteran’s earnings for the 12 months preceding the end date were $25,823.00, and that the last monthly payment was made in April 2015. The yearly amount reported exceeds the poverty threshold for three people for 2013 and 2014 See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Veteran’s application for a TDIU reflects that he has a high school diploma and two years of college. To the extent that the form is erroneous with respect to the Veteran’s earnings, the Board nonetheless finds that the preponderance of the evidence of record fails to shows that he was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. The Veteran testified that he has been working since July 6, 2017. He works for a company mowing grass on a riding mower; the company does not require drug tests; he uses over-the-counter pain relievers during the day; he drives a short distance to meet his main transportation for work; he still takes narcotic pain relievers when he gets home; and, that he uses a self-propelled push mower at home. While the Veteran testified that the November 2016 lumbar spine surgery helped him, the main reason he resumed work was that his son needed orthodontic treatment, and he wanted to preserve his son’s teeth. Thus, the Veteran resumed work out of financial necessity despite essentially the same circumstances that existed throughout the reporting period. Nonetheless, when only the service-connected disabilities are considered, the Veteran’s education and past training and work experience demonstrates the ability to work with minimal supervision and use repair skills. Moreover, the medical evidence shows that he can sit, stand, and walk for limited periods. Thus, the Board finds that the Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment for the period prior to July 6, 2017. As of that date, the Veteran testified that he earned $11 per hour. That hourly wage equates to $88 per day, $440 per week, $1760.00 per month, and $21,120.00 per year, which exceeds the poverty threshold for three people. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Veteran is married with one minor child. See 05/14/2014 VA Form 686c. Hence, the preponderance of the evidence is against the claim. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The examiner in April 2014 did not provide a nexus opinion on the Veteran’s OSA. See 04/14/2014 VA Examination, P. 20-22. Such should be sought on remand. Entitlement to service connection for erectile dysfunction is remanded. The examination report notes a diagnosis of erectile dysfunction as of 2013; but the report also notes that the Veteran was able to achieve an erection sufficient for penetration and ejaculation without medication. See id., P. 4-8. Those entries appear inconsistent on their face. Further, the examiner only addressed the medications associated with the treatment of the Veteran’s PTSD, as that was the state of the Veteran’s claim at the time. At the hearing, the Veteran expanded the claimed basis of his claim to include all of his medications. See Hearing Testimony, P. 10-11. Thus, additional medical review is needed to address all facets of the Veteran’s claimed entitlement to service connection for erectile dysfunction as due to the prescribed medications for his service-connected disabilities. 2. The propriety of reducing VA disability compensation due to receipt of Drill Pay is remanded At the hearing, the Veteran’s representative voiced confidence that this issue would be resolved between the RO and the Veteran’s USAR unit, but the appeal of the issue was not withdrawn. The records of the Veteran’s Reserve Points and the dates of his drills and/or active/inactive duty for training are not contained in the claims file. They must be added in order for the Board to address the issue, unless it is resolved while the case is on remand. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate examiner for a medical review. Ask the examiner to opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s OSA had its onset in active service or is otherwise causally connected to active service. The examiner must consider the Veteran’s lay-reported history and provide a full explanation for any opinion provided. 2. Send the claims file to an appropriate examiner for a medical review of the issue of erectile dysfunction. Ask the examiner to opine on whether the Veteran in fact has erectile dysfunction in light of the April 2014 notation in the examination report that he was able to achieve an erection sufficient for penetration and ejaculation without medication. If the examiner opines that the Veteran in fact has erectile dysfunction, please review all of the Veteran’s prescribed medications for his service-connected disabilities and opine if it is at least as likely as not (at least a 50 percent probability) that any or all causes erectile dysfunction. If not, is it is at least as likely as not that any or all of the Veteran’s prescribed medications for his service-connected disabilities have chronically worsened his erectile dysfunction. A full explanation must be provided for any opinion rendered.   3. Contact the appropriate USAR entity and obtain all records related to the Veteran’s Reserve Points, to include the days the Veteran performed Drill or active/inactive duty for training. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder