Citation Nr: 18148258 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-43 774 DATE: November 7, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected lumbar strain with degenerative changes is denied. Entitlement to a 70 percent evaluation, but no higher, for service-connected posttraumatic stress disorder (PTSD) with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress is granted. Entitlement to an initial 20 percent evaluation, but no higher, for service-connected left lower extremity sciatic radiculopathy is granted. Entitlement to an initial 20 percent evaluation, but no higher, for service-connected right lower extremity sciatica radiculopathy is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s lumbar strain with degenerative changes has not been manifested by forward flexion of 30 degrees or less; or favorable ankylosis of the entire lumbar spine. 2. Throughout the entire appeal period, the Veteran’s PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Throughout the appeal period, the Veteran’s left lower extremity sciatica radiculopathy has been manifested by incomplete paralysis which is moderate in degree. 4. Throughout the appeal period, the Veteran’s right lower extremity sciatica radiculopathy has been manifested by incomplete paralysis which is moderate in degree. 5. The Veteran has not been able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for service-connected lumbar strain with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5235-5243 (2017). 2. The criteria for a 70 percent evaluation, but no higher, for service-connected PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for an initial 20 percent evaluation, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for an initial 20 percent evaluation, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2002 to March 2005. During the appeal period, in a September 2016 rating decision, the RO granted service connection for left lower extremity radiculopathy and right lower extremity radiculopathy and assigned 10 percent evaluations, effective June 30, 2016. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 requires consideration of neurological findings. Although the Veteran did not specifically disagree with the ratings or the effective dates assigned for bilateral lower extremity radiculopathy, the Board finds that the ratings and effective dates for these issues are part and parcel of the Veteran’s claim for an increased disability rating for his service-connected lumbar spine disability. Thus, these issues are also before the Board. The issue of TDIU has been raised by the record with the claims for increased ratings, and thus, the Board has jurisdiction over the claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress The Veteran filed a July 2015 claim for increased rating for PTSD. See July 2015 VA Form 21-526EZ. During the pendency of the appeal, in an April 2017 Decision Review Officer (DRO) decision, service connection for substance-induced depressive disorder with anxious distress was granted and evaluated with service-connected PTSD. The Veteran’s PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress is currently rated 50 percent under DC 9411. Based on the guidance in Mittlieder, all mental health symptoms have been considered in the rating for service-connected PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress. See Mittlieder v. West, 11 Vet. App. 181 (1998). The Veteran’s PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Taking into account all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the entire period on appeal is warranted for the Veteran’s service-connected PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress. The Veteran has exhibited occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Throughout the appeal period, the Veteran’s symptoms have included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired impulse control, such as unprovoked irritability with periods of violence; difficulty in establishing and maintaining effective work and social relationships; disturbances of motivation and mood; and flattened affect. See October 2015 and September 2016 VA examination reports. The October 2015 and September 2016 VA examiners determined the Veteran has occupational and social impairment with reduced reliability and productivity. Nevertheless, the Veteran has not exhibited total occupational and social impairment. The Board notes the evidentiary record showed the Veteran reported having some passing thoughts of wanting to harm himself or others; however, he indicated that he has never made an attempt or acted on these thoughts. See September 2016 VA examination report. Further, treatment notes throughout the record including May 2015 VA psychiatry notes indicate the Veteran denied suicidal ideation; did not wish to be dead; and did not have non-specific active suicidal thoughts. The Veteran was noted as having somewhat circumstantial and vague thought processes and difficulty with attention and concentration. See September 2016VA examination report. However, mental status examinations throughout the record revealed he was cooperative; had normal speech; his cognition was grossly intact; he was fully oriented; and his memory was generally intact. See May 2015 VA psychiatry notes and September 2016 VA examination report. Moreover, he reported no perceptual disturbances. Id. The Board acknowledges that problems with his family, anxiety/panic attacks, and social withdrawal have been documented in the record. In this regard, the Board notes that the Veteran reported having few friends and that he does not do much outside of work. See October 2015 VA examination report. Further, the Veteran lives with his girlfriend of over eight years. See September 2016 VA examination report. Moreover, the Veteran’s girlfriend indicated that the Veteran attends functions/family gatherings, despite wanting to arrive late. See December 2015 Buddy/Lay Statement. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (holding that a Veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for his PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress, staged ratings are not warranted. Thus, the Board finds that the criteria for a disability rating of 70 percent for the entire period on appeal is warranted. However, the Veteran’s disability picture does not more nearly approximate the criteria for a 100 percent rating at any time during the appeal period. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. 2. Lumbar strain with degenerative changes Thoracolumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. When rating under the former formula, VA is directed to evaluate orthopedic disability separately with any associated objective neurologic abnormalities under an appropriate diagnostic code, and then combine the separate ratings under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (1). A rating under the latter formula is warranted where incapacitating episodes are present due to intervertebral disc syndrome (IVDS). An incapacitating episode is defined as 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. § 4.71a, Diagnostic Code 5243, Note (1). VA should then select whichever formula results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, disability ratings of 10, 20, 40, 50, 60, and 100 percent are authorized for thoracolumbar disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned, if forward flexion of 30 degrees or less; or favorable ankylosis of the entire lumbar spine is present. Where there is unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent is assigned. Finally, a maximum 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine. Note (5) to the rating formula specifies that unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Ankylosis also has been defined in precedent cases as stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Lumbar Spine Analysis The Veteran filed a July 2015 claim for increased rating for lumbar strain with degenerative changes. See July 2015 VA Form 21-526EZ. The Veteran is currently assigned a 20 percent evaluation for his low back disability. He contends that his symptoms have worsened. The Board finds that a rating in excess of 20 percent is not warranted for orthopedic manifestations of the Veteran’s lumbar spine disability. In this case, the record demonstrates that the Veteran’s most reduced range of motion showed forward flexion to 50 degrees, consistent with the assigned 20 percent rating. See October 2015 VA examination report. Significantly, upon October 2015 VA back examination, initial range of motion testing revealed forward flexion from zero degrees to 50 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and did not have additional loss of function or range of motion after three repetitions. The report indicated that pain was noted on examination, but did not result in/cause functional loss. There was no evidence of pain with weight bearing. Upon September 2016 VA back examination, initial range of motion testing revealed forward flexion from zero degrees to 65 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and additional loss of function or range of motion after three repetitions due to pain. Repetitive-use range of motion testing revealed forward flexion from zero degrees to 60 degrees. At no point during the appeal period did the Veteran have ankylosis of the thoracolumbar spine. See October 2015 and September 2016 VA examination reports. Upon VA back examination, the Veteran had range of motion after repetitive use testing (after three repetitions) results showing forward flexion was to 50 degrees in October 2015 and forward flexion to 60 degrees in September 2016. Further, the October 2015 and September 2016 VA examiners indicated the Veteran did not have ankylosis. Thus, these findings do not more nearly approximate or equate to unfavorable ankylosis, when considering additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As there is no evidence of unfavorable ankylosis, a rating higher than 40 percent is not warranted under the General Rating Formula. The Board next turns to the question of whether the Veteran is entitled to a higher rating based upon the diagnostic criteria pertaining to IVDS. See 38 C.F.R. § 4.25; see also 38 C.F.R. § 4.71a, DC 5243. As for a higher rating under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board finds that the evidence of record does not support that the Veteran was prescribed bed rest of at least four weeks but less than six weeks during any 12 month period on appeal, which is required for a 40 percent rating under the Incapacitating Episodes Formula. In this case, although the Veteran has reported experiencing flare-ups, the evidence does not support any incapacitating episodes as defined by VA regulation during the entire appeal period. See October 2015 and September 2016 VA examination reports. The Board takes into account the Veteran’s lay statements regarding his low back disability; however, he has not described incapacitation as defined by VA regulation. Significantly, the Board notes the Veteran reported experiencing daily flare-ups which lasted until he lays down to relieve the pressure from his back. See October 2015 VA examination report. He described his flare-ups as causing increased pain, decreased tolerance of sitting, radiating pain, and decreased lumbar spine motion. See September 2016 VA examination report. However, the October 2015 and September 2016 VA examiners determined that the Veteran does not have IVDS. Thus, the Board finds that the Veteran does not meet the criteria for the next higher rating of 40 percent under Diagnostic Code 5243. The Board has considered whether a higher rating may be available under an alternative diagnostic code but finds, for the reasons discussed above, that none is warranted. Significantly, the Board notes that the Veteran has been separately service-connected for bilateral lower extremity radiculopathy associated with his low back disability. Further, the October 2015 and September 2016 VA examiners indicated that the Veteran does have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). In conclusion, the Board finds that Veteran’s lumbar spine disability has not more nearly approximated a 40 percent rating, at any time during the appeal period. See 38 C.F.R. §§ 4.3, 4.7. All evidence has been considered and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 3. Bilateral lower extremity radiculopathy Note (1) to the General Rating Formula for Diseases and Injuries of the Spine requires consideration of neurological findings, including bladder or bowel impairment. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the regulations and rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Although the use of the terms “mild,” “moderate,” and “severe” by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6, 4.7. Analysis In this case, the Veteran was granted service connection for left lower extremity radiculopathy and right lower extremity radiculopathy and assigned 10 percent evaluations, effective June 30, 2016. As noted in the Introduction, the Board will evaluate whether a rating in excess of 10 percent for service-connected bilateral lower extremity radiculopathy is warranted from June 30, 2016, and whether a compensable rating prior to June 30, 2016, is warranted. The Board finds that for the entire period on appeal, a 20 percent rating for left lower extremity radiculopathy is warranted and a 20 percent rating for right lower extremity radiculopathy is warranted. The evidence of record reflects that the Veteran’s bilateral lower extremity radicular symptoms related to his lumbar spine disability, have been present throughout the appeal period. In connection with his July 2015 claim for increased rating for back disability, the Veteran was afforded an October 2015 VA back examination and the report indicated that the Veteran reported that his legs felt weak and there was possible numbness. The report noted that the Veteran had radicular pain or other signs or symptoms due to radiculopathy. Significantly, physical examination revealed the Veteran had moderate bilateral lower extremity numbness and did not have bilateral lower extremity constant pain, intermittent pain, or paresthesias and/or dysesthesias. He did not have any other signs or symptoms of radiculopathy. Upon September 2016 VA examination, the Veteran was diagnosed with bilateral lower extremity radiculopathy. The report noted that the Veteran had mild constant lower extremity pain, bilaterally; severe intermittent lower extremity pain, bilaterally; moderate lower extremity numbness, bilaterally; and did not paresthesias/dysesthesias, bilaterally. The examiner indicated the overall severity of the Veteran’s lower extremity radiculopathy was mild, bilaterally. The Board notes that the September 2016 VA examiner characterized the overall severity as mild. However, taking into consideration his reports of leg pain and weakness, the Board finds that the Veteran’s bilateral lower extremity radiculopathy has been manifest by moderate, incomplete paralysis for the entire period on appeal. 38 38 C.F.R. §§ 4.2, 4.6, 4.7. Therefore, the Board finds that 20 percent ratings, but no higher, for left lower extremity radiculopathy and right lower extremity radiculopathy are warranted. However, a rating in excess of 20 percent for bilateral lower extremity radiculopathy is not warranted at any time during the appeal period. 4. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, 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 that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). “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). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has alleged that he cannot sustain substantially gainful employment because of the combined effects of his service-connected disabilities. See June 2016 VA Form 21-8940. The Veteran has a high school education and completed two years of college classes without obtaining a degree. Id. The Veteran indicated that the most he ever earned in one year was $30,000.00. Id. He reported working as a maintenance technician, 40 hours per week from 2009 to 2011 and losing weeks of work due to his disabilities; working in the lawn care business from 2011 to 2013 and losing months of work due to his disabilities; and working as a farm hand from 2013 to present. The Veteran reported that he has missed days of work because of PTSD and leaves work early, daily because of back pain and leg weakness. Id. The Veteran is service-connected for PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress; lumbar strain with degenerative changes; left lower extremity sciatica radiculopathy; and right lower extremity sciatica radiculopathy. Pursuant to the Order above, the Veteran’s PTSD is rated at 70 percent disabling throughout the entire appellate period. See 38 C.F.R. § 4.16(a). Therefore, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran argues that his service-connected disabilities, in the aggregate, preclude his ability to obtain or maintain substantially gainful employment. The Veteran reported that he has missed days of work because of PTSD and leaves work early because of back pain and leg weakness. See June 2016 VA Form 21-8940. He reported that he starts his day with beers around 7:00 in the morning and heads to work. See December 2015 Correspondence. He drinks between doing work. He reported that he is working on his family’s farm, but has to come home to take a nap and most of the work gets pushed off. The Veteran stated that he gets angry with people; forgets things all the time; cannot come up with words in a conversation; and has anxiety attacks. He reported that he has severe pain in his lower back when lifting a heavy load for work and has to take frequent breaks. The Veteran reported that he would not have a job if it was not for his dad hiring him on the family farm. Pursuant to 38 C.F.R. § 4.16(a), a veteran is entitled to TDIU if his employment is “marginal,” which is not considered substantially gainful employment. Marginal employment may also “be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), [even] when earned annual income exceeds the poverty threshold.” Id. The September 2016 VA PTSD examination report indicated that the Veteran was working on his family farm, but because of his medical/physical problems, alcohol use, and anxiety, he is only working half days. The September 2016 VA examiner indicated that the Veteran’s lumbar spine disability impacted his ability to work. The examiner explained that the Veteran’s back condition would adversely affect his ability to perform occupational tasks requiring physical work such as lifting, pushing, pulling, bending, kneeling, squatting, climbing, prolonged sitting, lifting and/or carrying, repetitive transferring between seated and standing positions, and truncal bending or twisting. Here, the Veteran is working half days for a family farm business. Indeed, the VA examinations of the Veteran support that he has functional limitations associated with his psychiatric and physical disabilities which impact his ability to perform substantially gainful employment. The September 2016 VA back examination report indicated that the Veteran’s lumbar spine disability adversely impacted his ability to perform occupational tasks requiring physical work such as lifting, pushing, pulling, bending, kneeling, squatting, climbing, prolonged sitting, lifting and/or carrying, repetitive transferring between seated and standing positions, and truncal bending or twisting. Further, the September 2016 VA PTSD examination report indicated the Veteran continues to drink every day, averaging about an 18 pack of beer a day. The examination report indicated that the Veteran was only working half days on his family farm at best because of his medical/physical problems, alcohol use, and anxiety. Moreover, the Veteran’s girlfriend indicated that she has been dating the Veteran since 2007 and has witnessed his impatience, anger management problems, heavy drinking, and forgetfulness. See December 2015 Buddy/Lay statement. The Veteran’s girlfriend’s statements are competent, as she has first-hand knowledge of witnessing the symptoms of the Veteran’s disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the fact that the Veteran works very truncated hours at his family farm business and is allowed to take frequent breaks from working on account of his back, legs, drinking, and psychiatric symptoms demonstrates that the Veteran is in a protected work environment; thus, engaged in marginal employment. See 38 C.F.R. § 4.16(a). In conclusion, the Board finds that the Veteran’s service-connected disabilities more likely than not have prevented him from obtaining and maintaining gainful employment and as a result, he has been engaged in marginal employment on his family farm, pursuant to 38 C.F.R. § 4.16(a). Therefore, resolving all reasonable doubt in his favor, the criteria for TDIU has been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel