Citation Nr: 1817078 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-35 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for canal stenosis with disc protrusion at L5-S1. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Marine Corps from April 2001 to April 2005 and from June 2005 to June 2006, including service in Iraq. He is the recipient of the Marine Corps Good Conduct Medal. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board most recently remanded this matter in September 2016. A July 2017 rating decision increased the initial evaluation of central canal stenosis with disc protrusion at L5-S1 from 10 percent to 20 percent, effective May 1, 2008. As such was not a full grant of the issue on appeal, a Supplemental Statement of the Case (SSOC) was issued in July 2017. The July 2017 rating decision also granted service connection for radiculopathy of the left lower extremity and assigned an initial rating of 20 percent, effective May 1, 2008. Absent any indication that the appellant has filed a notice of disagreement with the "downstream" elements of the disability rating or effective date assigned, such matters are not in appellate status. FINDINGS OF FACT 1. Prior to January 24, 2017, the appellant's canal stenosis with disc protrusion at L5-S1 was manifested by greater than 30 degrees of flexion. Prior to January 24, 2017, there was no ankylosis; and there were no incapacitating episodes which required physician-prescribed bedrest with a total duration of at least four weeks in any 12-month period. The severity does not more nearly approximate ankylosis for any portion of such period. 2. Beginning January 24, 2017, the severity of the appellant's canal stenosis with disc protrusion at L5-S1 more nearly approximates flexion of less than 30 degrees. Beginning January 24, 2017, there was no ankylosis; and there were no incapacitating episodes which required physician-prescribed bedrest with a total duration of at least six weeks. The severity does not more nearly approximate ankylosis for any portion of such period. 3. The appellant's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating prior to January 24, 2017, for canal stenosis with disc protrusion at L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5238 (2017). 2. The criteria for a 40 percent rating, and no higher, for canal stenosis with disc protrusion at L5-S1 have been met, beginning January 24, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5238 (2017). 3. The criteria for a total rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Increased Evaluations A. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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, the following ratings are assigned: A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. A note explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. A note explains that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. B. Background An April 2008 clinical note states that the appellant's chronic lower back pain is slightly worse during multiple episodes of acute exacerbations. He stated that he was able to continue activities of daily living, work in a recreation department with children, exercise with weights, and the like. He was still able to play basketball, although he occasionally developed left-sided lower back pain while playing. A May 2008 clinical note states that the appellant complained of lower back pain. He described the pain as inconsistent, being present on some days but not others. It has not limited activities of daily living. Rather, he is able to perform strenuous sports most of the time without much difficulty. Such had not changed since his April 2008 appointment. A May 2008 MRI revealed a disk protrusion at L5/S1 with mild to moderate central canal stenosis. Pain was only intermittent in the area. Range of motion testing was not conducted. The appellant was afforded a VA examination in June 2008. The claims file was reviewed. He reported that the frequency of his back pain had increased and that he experienced flare-ups during which he feels as if his back "went out." He experienced constant back pain. He reported increased back pain with sitting, driving, and bending. Pain in the low mid back was constant, sharp, daily, and moderate in severity. Flare-ups were severe and occurred every five to six months. Such lasted for three to seven days. The precipitant was unknown. Alleviating factors included rest and medication. The appellant's impression of functional impairment was that severe pain limited movement. There were no incapacitating episodes. There was no limitation regarding walking and there was no ankylosis. Range of motion testing revealed flexion of 90 degrees and extension, bilateral lateral flexion, and bilateral lateral rotation of 30 degrees each. There was objective evidence of pain on flexion at 65 degrees, extension at 30 degrees, and left lateral flexion at 30 degrees. There was no additional limitation of motion following repetitive-use testing. It was noted that the appellant worked full-time as a recreational therapist and had done so for one to two years. He had not lost any time from work during the last 12-month period. However, there were significant effects on his usual occupation, including pain and problems with lifting and carrying. Effects on usual daily activities were mild for chores and sports and mild for exercise. There were no effects on shopping, recreation, traveling, feeding, bathing, dressing, toileting, and grooming. An August 2008 clinical note states that the appellant complained of intermittent back pain, which was worse with driving, sitting, and long-time standing. It improved with stretching and lying down. He had been working in a gym as a lifeguard and a children's supervisor. He played basketball once or twice a week and played football on Sundays. Range of motion of the lumbar spine was normal. He was prescribed a TENS unit. In his NOD, received in December 2009, the appellant reported that he had a herniated disc in his lower back. He stated that, when his back is "upset," the pain was of sufficient severity to keep him out of work and in bed all day because he cannot move. He expressed concern that his back disability would worsen and limit his activities. He stated that he was currently working in Kuwait as a contractor. In his substantive appeal, received in August 2010, the appellant stated that his back prevents him from working when it is "upset." He explained that he cannot work, cannot walk, and cannot put on his own shoes during such periods. In a statement received in July 2012, the appellant stated that his back was worsening. He would not be back in the United States for two years. Private records, including those from Guardian International, dated May 2014, indicate complaints of back pain and treatment for such, including injections and prescription medication. Such records note observation of a hernia. The appellant was scheduled for a VA examination in May 2014; however, he was out of the country at the time. In a statement received in June 2014, the appellant reported that he had gone to the hospital on numerous occasions over the past few years for his back pain while working as a civilian in Kuwait and Afghanistan. He indicated that he would likely require back surgery in the future. He stated that he had to take time off work for physical therapy while working in Kuwait. He required a week's worth of pain shots while in Afghanistan to make it through the work days. He stated that he experienced back pain for more than a month while in Afghanistan and still felt nerve damage. He planned to visit a hospital in Dubai the next time he had vacation to have his back checked again. The appellant was afforded a VA examination on January 24, 2017. The claims file was reviewed. In addition to radiating pain, the appellant reported mild lower mid-lumbar pain which had been worse for the past few months due to surgery for an umbilical hernia which prevented him from being able to work out. Flare-ups were intermittent, which include very severe pain in the lower back. The appellant reported that three such flares had occurred in the past year. Each lasted 10 days. During flare-ups, walking was limited to 10 feet, he was unable to tie his shoes, and he was unable to sit for prolonged periods. Range of motion testing revealed flexion of 75 degrees, extension of 15 degrees, bilateral lateral flexion of 10 degrees each, and bilateral lateral rotation of 15 degrees each. Pain was observed on flexion and bilateral lateral flexion; however, such did not cause functional loss. There was no evidence of pain with weight-bearing. There was very mild tenderness in the mid low lumbar region due to herniated disc. Following repetitive-use testing, range of motion testing revealed flexion of 35 degrees, extension of 10 degrees, right lateral flexion of 15 degrees, left lateral flexion of 10 degrees, and bilateral lateral rotation of 10 degrees. Pain and lack of endurance significantly limit functional ability with repeated use over a period of time. Additional loss of range of motion would be mild in flexion and the bilateral lateral flexion planes. The examination was not conducted during a flare-up. Pain and lack of endurance significantly limit functional ability with flare-ups. Additional loss of range of motion during a flare-up would be severe in all planes of motion. There was no guarding or muscle spasm. Disturbance of locomotion and interference with sitting were noted as additional factors contributing to disability. There was no ankylosis of the spine. He had not been prescribed bed rest by a physician in the past 12 months. No assistive devices were used as a normal mode of locomotion. With respect to the effects on the appellant's ability to perform active work, there were no limitations of standing, walking, pushing, climbing, or kneeling. However, lifting was limited to 35 pounds. With respect to effects on the ability to perform sedentary work, there were no limitations on keyboarding, sitting, interacting with people, writing, or filing. During a flare-up, for active work, there were no limitations on standing, but walking was limited to 10 feet, lifting was limited to 10 pounds, pushing was limited to 10 pounds, kneeling was limited to 15 minutes, and he would be unable to climb a ladder. During a flare-up, for sedentary work, there were no limitations on keyboarding, interacting with people, writing, or filing. However, he would have to change sitting positions every five minutes and stand every 30 minutes. In the representative's October 2017 informal hearing presentation, it is stated that that the appellant has reported that his back gets upset at times and keeps him out of work and in bed all day. Surgeries have been recommended due to the severity of his back symptomatology; however, the appellant has declined undergoing surgery thus far. The appellant believes his back disability will only worsen with time and further limit daily activities and employment. C. Analysis For the reasons that follow, the Board finds that an initial rating in excess of 20 percent for canal stenosis with disc protrusion at L5-S1 is not warranted prior to January 24, 2017, but a rating of 40 percent, and no higher, is warranted beginning January 24, 2017. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). i. Prior to January 24, 2017 During this period, there is no competent medical evidence, nor is it contended, that the appellant's service-connected back disability was manifested by ankylosis. In addition, forward flexion of the thoracolumbar spine was not measured to be 30 degrees or less. Rather, flexion was measured to 90 degrees during the June 2008 VA examination and there was no additional limitation of motion following repetitive-use testing. Although the appellant competently and credibly reported flare-ups during this period, the evidence of record establishes that such do not more nearly approximate a rating in excess of 20 percent. Rather, the appellant reported in May 2008 that his pain was inconsistent but such had not limited activities of daily living. He had been able to perform strenuous sports most of the time without difficulty. During his June 2008 VA examination, he reported flare-ups during which it felt like his back "went out." However, he also reported that he had not lost any time form work in the past 12 months. In August 2008, it was noted that he could play basketball once or twice a week and play football once a week. In his December 2009 NOD, the appellant reported that flare-ups kept him in bed all day because he could not move. In July 2012, the appellant reported that his back was worsening. The Board has considered the appellant's competent reports of his increased pain and inability to perform physical work during flare-ups. However, the Board finds that, prior to January 24, 2017, the severity of the appellant's back disability, including during flare-ups, does not more nearly approximate the criteria for a 40 percent rating. Flare-ups were less frequent and were of shorter duration prior to January 2017. In June 2008, the appellant stated that flare-ups occurred every five to six months and lasted for three to seven days. He also reported that he had not lost any time from work in the past 12 months. In January 2017, he reported that flare-ups had occurred three times in the past year and that each had lasted 10 days. The Board affords great probative weight to the appellant's June 2008 statement that he did not miss any time from work in the past 12 months, although he experienced flare-ups every five to six months, which lasted for three to seven days. Further, the appellant was able to perform strenuous physical activity during this period. He worked in a recreation department, was a lifeguard, exercised with weights, and played basketball and football. There is no evidence, nor is it contended, that the appellant experienced any incapacitating episodes which required physician-prescribed bedrest with a total duration of at least four weeks in any 12-month period. Thus, an initial rating of 20 percent, and no higher, is warranted for the appellant's canal stenosis with disc protrusion at L5-S1 is warranted, prior to January 24, 2017. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ii. Beginning January 24, 2017 The January 2017 VA examiner opined that pain and lack of endurance significantly limit functional ability with flare-ups. Additional loss of range of motion during a flare-up would be severe in all planes of motion. Affording the appellant the benefit of the doubt, the Board finds that severe loss of range of motion in the instant appeal more nearly approximates forward flexion of 30 degrees or less. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Thus, a rating of 40 percent is warranted, beginning January 24, 2017, the first date with evidence of a measurable increase in severity of flexion limited to 35 degrees on repetitive use. When coupled with the appellant's reports of additional functional loss during flare-ups which occur on a frequent basis, the Board finds that the criteria for a 40 percent rating have been more nearly approximated. However, a rating in excess of 40 percent is not warranted, even taking into consideration the appellant's functional loss during flare-ups, because there is no evidence that the appellant experienced ankylosis or symptoms which are the equivalent of ankylosis during a flare-up, or at any other time. Rather, the January 2017 VA examiner opined that loss of range of motion would be "severe," but not complete, during a flare-up. As such opinion was based upon a review of the relevant evidence of record and an examination of the appellant, which included the appellant's lay reports of symptomatology, the Board finds that such opinion is entitled to great probative weight. Further, the frequency of flare-ups had increased, per the appellant's statements. In June 2008, he stated that flare-ups occurred every five to six months and lasted for three to seven days. In January 2017, he reported that flare-ups had occurred three times in the past year and that each had lasted 10 days. There is no evidence, nor is it contended, that the appellant experienced any incapacitating episodes which required physician-prescribed bedrest with a total duration of at least six weeks in any 12-month period. Resolving reasonable doubt in favor of the appellant, a rating of 40 percent, and no higher, is warranted for the appellant's canal stenosis with disc protrusion at L5-S1 is warranted, beginning January 24, 2017. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. TDIU A. Applicable Law VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). For the above 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, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. B. Background The appellant was afforded a VA examination in June 2008. The claims file was reviewed. It was noted that the appellant worked full-time as a recreational therapist and had done so for one to two years. He had not lost any time from work during the last 12-month period. An August 2008 clinical note states that the appellant was concerned that his difficulties with focus and concentration would interfere with his attending college. It was noted that he had worked at a farm for troubled youth for one year. September 2008 clinical notes indicate that the appellant planned to leave his current job at a farm for troubled youth to take a one-year civilian contractor job in Kuwait. He had begun taking courses at a community college. The appellant was attracted to such contract job in Kuwait as a lifeguard because he could count as part of his job, a compulsion he developed following discharge. The appellant did not feel he was fit for active duty and wished to be exempt from being recalled to active duty. He planned to pursue his new employment instead in Kuwait. A March 2010 clinical note states that the appellant worked as a lifeguard for a government contractor in Kuwait. An April 2012 clinical note states that the appellant worked as a civilian contractor with a Logistics Civil Augmentation Program in Kuwait. He has held this job for the past two to three years. A second April 2012 clinical note states that the appellant worked for a private contractor as a personal trainer, lifeguard, and water aerobics instructor in Kuwait. He planned to continue working for the contractor for several more years. In a statement received in August 2012, the appellant's mother indicated that the appellant worked in Kuwait as a civilian. An October 2012 emergency room note states that the appellant presented with mild to moderate spinal stenosis and requested pain medication because "they do not have good pain meds in Kuwait." While in Kuwait, he worked as a personal trainer, including lifting weights, but was laid off and was headed to Afghanistan where he would provide security on a military base in a sedentary position which involved sitting and using a computer. Examination revealed pain in the low lumbar region. He was diagnosed with left sciatica. The plan was to apply heat to the back and to avoid lifting and prolonged sitting. Private records, including those from Guardian International, dated May 2014, indicate complaints of back pain and treatment for such, including injections and prescription medication. Such records note observation of a hernia. In a statement received in June 2014, the appellant reported that he has gone to the hospital on numerous occasions over the past few years for his back pain while working in Kuwait and Afghanistan. He indicated that he would likely require back surgery in the future. He stated that he had to take time off work for physical therapy while working in Kuwait. He required a week's worth of pain shots while in Afghanistan to make it through the work days. He stated that he experienced back pain for more than a month while in Afghanistan and still felt nerve damage. He planned to visit a hospital in Dubai the next time he had vacation to have his back checked again. A March 2017 clinical note states that the appellant plays basketball and works out. He was currently on workman's compensation for an umbilical hernia. He had been employed with an overseas contracting company in Afghanistan for the past five years. Prior to that, he was employed by a different overseas civilian contractor with a Logistics Civil Augmentation Program in Kuwait. The appellant expressed hope that he would be medically cleared and returned to Dubai within two weeks to complete his contract, which ends in July 2017. A November 2016 clinical note states that the appellant had a laparoscopic incarcerated umbilical hernia repair earlier in the month in Dubai. A March 2017 clinical note states that the appellant was on medical leave from his contract position related to hernia repair. He was cleared this week and planned to go back overseas to complete the contract, which expires in July. An April 2017 clinical note states that the appellant's current civilian contract position in the Middle East would end in July 2017. He noted that he obtained paperwork for medical clearance to return to the position from his VA primary care provider and expected that his employer would make plans for him to return to Afghanistan in the near future. In the representative's October 2017 informal hearing presentation, it is noted that the appellant has not submitted a Form 21-8940. It states that the appellant has reported that his back gets upset at times and keeps him out of work and in bed all day. Surgeries have been recommended due to the severity of his back symptomatology; however, the appellant has denied such thus far. The appellant believes his back disability will only worsen with time and further limit daily activities and employment. The appellant is currently "an overseas contract person," while his service-connected disabilities limit the type of work he is able to do. It was noted that the availability of work in his field of expertise that he can perform is limited. A February 2018 clinical note states that the appellant had worked as a contractor in the Middle East for many years. He returned stateside in December following an overseas tibia fracture which resulted in his discharge from employment. He stated that he had since healed and that he was able to collect unemployment for some time. C. Analysis Service connection is currently in effect for obsessive-compulsive disorder, rated as 30 percent disabling, effective May 1, 2008; central canal stenosis with disc protrusion, rated as 20 percent disabling from May 1, 2008, and as 40 percent disabling from January 24, 2017; radiculopathy of the left lower extremity, rated as 20 percent disabling from May 1, 2008; bilateral tinnitus, rated as 10 percent disabling from May 17, 2007; and status post fracture of the right little finger, rated as zero percent disabling from May 1, 2008. Prior to January 24, 2017, the appellant's combined evaluation for compensation was 60 percent. He did not meet the schedular criteria for TDIU prior to that date. With the above grant of a rating of 40 percent for central canal stenosis with disc protrusion at L5-S1 beginning January 24, 2017, the appellant meets the schedular criteria for TDIU because his combined evaluation is at least 70 percent and one service-connected disability is rated at 40 percent disabling. 38 C.F.R. § 4.16. Upon weighing the evidence, the Board finds that referral to the Director, Compensation and Pension, is not warranted for the period prior to January 24, 2017, and that the preponderance of the evidence is against the appellant being unemployable due to his service-connected disabilities for the period beginning January 24, 2017. There is competent and credible evidence that the appellant has been working throughout the period on appeal until December 2017, when he was discharged from employment overseas due to a nonservice-connected tibia fracture. There is no indication, nor is it contended, that the appellant's employment was not substantially gainful. Such work was primarily with civilian contractors in Kuwait and Afghanistan, in addition to a domestic farm for troubled youth. Although the appellant expressed doubts that he would be fit for active duty in August 2008, he was working in the civilian sector at the time and indicated a belief that he could handle civilian work overseas. The Board recognizes that there is evidence that the appellant was unable to work for portions of the period on appeal. He underwent umbilical hernia repair in November 2016 and received workman's compensation for such. In March 2017, it was noted that he was on medical leave from his contract position due to his hernia repair, although he was cleared to return overseas to complete the contract. In December 2017, the appellant fractured his tibia while overseas, which resulted in his discharge from employment. He reported in February 2018 that he had since healed. However, there is no evidence, nor is it contended, that such were related to the appellant's service-connected canal stenosis with disc protrusion at L5-S1, or indeed any other service-connected disability. During his January 2017 VA examination, the appellant stated that his lumbar spine pain was worse following umbilical hernia surgery; however, he explained that this was because he was unable to perform exercises for his back during the post-surgical recovery period. The appellant has competently reported an inability to perform work during flare-ups; however, the January 2017 VA examiner opined that there were no limitations on his ability to perform sedentary work; although, during a flare-up, he would need to change sitting positions every five minutes and stand every 30 minutes. The Board observes that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, the Board has considered the January 2017 VA examiner's opinion regarding the appellant's ability to perform tasks associated with both sedentary and physical jobs, including during flare-ups, and finds that it is entitled to great probative weight as it is well-reasoned and based upon an examination of the appellant and a review of the claims file. The Board further observes that the appellant has been able to perform physical labor and physical sports throughout the period on appeal. See e.g. April 2008, August 2008, and March 2017 clinical notes and June 2008 VA examination report. The Board notes that, although the appellant was sent a Form 21-8940 in September 2016 in order for him to provide more information regarding his claim that he is unable to secure or follow a substantially gainful occupation, to day, he has not completed and submitted such. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran is actually employed or can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the most probative evidence establishes that the appellant is not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Although his service-connected disabilities may impair his ability to engage in manual labor, the record reflects that he is capable of performing sedentary work. While the Board recognizes the limitations the appellant faces due to his service-connected disabilities, these limitations were considered in the disability ratings he receives for those disabilities. Again, the assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. However, despite these limitations, the Board finds that the most probative evidence shows that the appellant is not unable to secure or maintain substantially gainful employment due solely to his service-connected disabilities. Rather, the Board finds that the appellant was capable of performing the physical and mental acts required for employment. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 20 percent for canal stenosis with disc protrusion at L5-S1, prior to January 24, 2017, is denied. Entitlement to a rating of 40 percent, and no higher, for canal stenosis with disc protrusion at L5-S1, beginning January 24, 2017, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs