Citation Nr: 20002385 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 10-21 383 DATE: January 14, 2020 ORDER Entitlement to an initial disability rating in excess of 20 percent for a lumbar spine condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT 1. For the entire period on appeal, the Veteran’s lumbosacral spine disability has not been manifested by forward flexion of the thoracolumbar spine to 15 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. The probative and competent evidence of record demonstrates that the Veteran’s service-connected disabilities did not preclude him from securing or following a substantially gainful occupation at any time during the period of the appeal. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating in excess of 20 percent service-connected lumbosacral spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107(2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2018). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been not been met. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.1, 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1978 to November 1981; January 2003 to May 2004; and May 2007 to August 2007 including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the November 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for degenerative disc disease, lumbar spine with an evaluation of 10 percent effective August 9, 2007. During the pendency of this appeal, the RO granted a rating increase of 20 percent for lumbar spine disability with an effective date of August 9, 2007. See Rating Decision-Narrative, March 2010. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim for entitlement to an increased initial rating for degenerative joint disease of the lumbar spine is still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before a Veterans Law Judge (VLJ) at a June 2017 videoconference hearing and a transcript of the hearing has been associated with his claims file. In November 2018, the Board remanded this matter for further development. In a June 2019 Supplemental Statement of the Case (SSOC), the Veteran’s claim for entitlement to TDIU was denied. In October 2019 a letter, the Veteran was informed that the VLJ who conducted the June 2017 hearing was no longer employed at the Board and offered him a new hearing. The Veteran responded in November 2019 that he did not wish to have another Board hearing and wanted to have his case considered on the evidence of record. See Hearing Related, November 2019. Initial Increased Rating In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial disability rating in excess of 20 percent for a lumbar spine condition The Veteran is seeking an increased rating for his service-connected lumbar spine condition. The Veteran’s chronic low back pain is currently rated under Diagnostic Code 5243, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. The Veteran has been diagnosed with arthritis of the thoracolumbar spine. Under Diagnostic Code 5003, degenerative arthritis is rated based upon the limitation of motion of the affected part. See 38 C.F.R. § 4.71a. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups. Id. A 20 percent rating is warranted where there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Id. Ratings under Diagnostic Code 5003 cannot be combined with ratings based on the limitation of motion of the same joint. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In this case, the evidence shows the compensable limitation of motion for the lumbar spine, and therefore, a rating under Diagnostic Code 5003 is not warranted. Diagnostic Code 5243 allows for a rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered a normal range of motion of the thoracolumbar spine. Id. at Note 2 and Plate V. Ankylosis is the complete immobility of a joint in a fixed position. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the joint in a fixed position). For purposes of assigning evaluations for IVDS under Diagnostic Code 5243, 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. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. In April 2008, the Veteran was diagnosed with low back pain with disc disease and his forward flexion was 90 degrees. See Medical Treatment Record-Non-Government Facility, August 2008 at p.6 of 14. In August 2008, the Veteran was diagnosed with displacement of lumbar intervertebral disc without myelopathy and his forward flexion was 90 degrees, with pain noted at 45 degrees. Id. at p.7, 8 of 14. In October 2008, the Veteran was afforded a VA examination. See VA Examination, October 2008. Examination of the lumbar spine revealed some straightening with loss of normal lordosis curve, muscle spasm and tenderness in the para-lumbar muscles, forward flexion of 85 degrees with pain at 55 degrees, repetitive use forward flexion of 80 degrees. Id. at p.9 of 17. Range of extension and bilateral rotation and lateral flexion were all 20 degrees. The combined range of motion was 180 degrees. A decrease in range of motion due to pain, and not fatigue, weakness, or incoordination was noted. Id. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. Id. The Veteran reported that he was able to perform Army Reserve training the previous summer and did not lose time from work for the Department of Defense as a heavy vehicle mechanic. A May 2009 EEO Counselor’s Report reflects that from August 16, 2008 to May 23, 2009, the Veteran used a total of 233 hours of sick leave due to issues with his back. See Military Personnel Record, May 2009. However, the Veteran was able to perform 52 days of Reserve duty in 2009. In September 2009, the Veteran was afforded another VA examination. See Medical Treatment Record-Government Facility, January 2010 at p.7 of 15. The Veteran’s issue was noted as intervertebral disc syndrome. Id. The Veteran reported that during flare up he is usually restricted to his bed due to pain with activity or movement. Id. at p.8 of 15. No ankylosis was noted. Id. The Veteran’s forward flexion was 40 degrees and 35 degrees after repetitive use. Id. at p.12 of 15. Extension was 10 degrees, right and left rotation and lateral flexion was 30 and 15 degrees. The combined range of motion was 135 degrees. An October 2009 VA physician note reflects that the Veteran requested a note for work due to exacerbation of low back pain. See Medical Treatment Record-Government Facility, February 2014 at p.130 of 279. An October 2009 VA triage note reflects that the Veteran reported shooting pain in the lower back down leg of 10/10; worsening with changing position affecting his physical activity. Id. at p.129 of 279. During a June 2010 VA PTSD assessment, the Veteran reported that he was not feeling well and that his back was really bothering him. Id. at p.105 of 279. In a June 2010 VA primary care evaluation, the Veteran reported that his back brace was wearing out and he needed to get it replaced. Id. at p.101 of 279. The Veteran reported that his lower back pain was an 8/10, was sharp, constant varying in degree, aggravated by exercise and walking, and alleviated by lying down. Id. at p.102 of 179. In a July 2010 VA ASI-addiction interview, the Veteran reported that he had a chronic medical problem with his back that interferes with his life. Id. at p.96 of 279. An August 2010 VA note reflects that the Veteran reported low back pains exacerbated by mowing his yard over the weekend. Id. at p.90 of 279. The examination showed decreased flexion, extension, and lateral movements due to pain. Id. In September 2010 VA pain clinic note, the examiner noted that the Veteran presented with the same degree of low back pain as when he first visited in July 2009. Id. p.85 of 279. The Veteran reported that his low back pain was constant and aggravated by movement in general, radiating, at times to his left leg and occasionally lasting up to several days. Id. The examiner noted that the Veteran’s gait was stable, his flexion was 50 degrees, had slight decrease in sensation in left lateral thigh distally, had normal strength, and symmetric reflexes. Id. at p.86 of 279. The examiner believed that the Veteran’s back pain was related to the degenerative changes shown on his MRI. Id. In a September 2010 mental health note, the Veteran reported that he was still active in the Reserve and had just performed weekend duty. Records show that he completed 59 days of Reserve training in 2010. A December 2010 C&P Examination note for stress disorder reflects that the Veteran reported missing work in the past year for “stress” and back issues. Id. at p.72 of 279. A March 2011 VA triage note reflects that the Veteran reported that he was unable to go to work due to back pain. Id. at p.70 of 279. The Veteran reported that he had not been wearing his lumbar support. Id. The Veteran reported his back pain was a 6/10 and that it was affecting his physical activity and enjoyment of life. Id. A March 2011 VA urgent care note reflects that the Veteran reported that he did not got to work that day due to back pain and he needed an excuse for work. Id. at p.67 of 279. The Veteran reported that he was working in his garage, cleaned it a little, and he thought he over did it. Id. A May 2011 VA pain clinic note reflects that the Veteran reported increased back pain with left poster thigh, calf radiation. Id. at p.57 of 279. The Veteran reported that he had the pain for approximately one week after he did repetitive lifting. Id. A May 2011 VA progress note reflects that the Veteran’s gait was stable though mild truncal stiffness was noted, motion involving the lumbosacral spine was limited with flexion of 40 degrees. See Medical Treatment Record-Government Facility, August 2011 at p.20 of 61. In a June 2011 VA radiology report, based on an MRI of the Veteran’s lumbar spine, the radiologist noted, “lower lumbar degenerative disc disease worse again at L5-S1 where there is severe right foraminal stenosis compressing the right L5 nerve root and moderate left foramina stenosis. Interval development minute left subarticular focal extruded disc herniation impinging the left s1 nerve root and possible regression right subarticular component of broad posterior protrusion.” See Medical Treatment Record-Government Facility, July 2011. A July 2011 VA note reflects that the Veteran primary care provider, after reviewing the Veteran’s MRI report, believed that his left leg pain is related to the new disc at the L5-S1 level and he would benefit from an epidural. See Medical Treatment Record at p.54 of 279. A July 2011 VA triage note reflects that the Veteran reported a flare-up of his lower back pain with radiation down left leg. Id. at p.50 of 279. The Veteran reported that pain as a 9/10. Id. The examiner noted, “acute flare/chronic back pain” and administered the Veteran an excuse for work. Id. at p.49 of 79. Also in July 2011, the Veteran was found eligible for VA vocational rehabilitation services in the field of human resources management. In November 2011, the Veteran was seen for low back pain. Id. at p.43 of 279. The Veteran stated, “I hurt all of the time, but I guess that is the way it will be.” Id. The Veteran reported that his lower back pain was a 9/10, was constant and achy, aggravated by movement, standing or sitting too long, and alleviated to a 6/10 with medication, stretches and back brace with ice. Id. In a November 2011 VA physician addenda, the examiner noted that the Veteran is generally healthy but treated for left sided low back pain. Id. at p.42 of 279. The examiner noted the Veteran’s problem as “back pain radiating down right leg.” Id. The examiner noted the June 2011 MRI report. Id. In April 2012, the Veteran’s vocational rehabilitation plan was extended to August 2012 in the field of automobile insurance claims adjuster. A December 2012 VA nurse practitioner note reflects that the Veteran reported low back pain of 9/10 and bulging disc. Id. at p.28 of 279. The Veteran reported that had physical therapy in past and was still doing the exercises. Id. The Veteran reported that his medication was not as effective, that he wears a corset frequently, and has some tingling into left leg & numbness in foot. Id. In January 2013, the Veteran was approved for study for an associate degree in automotive technology through the June 2013 semester. In August 2013, VA authorized the procurement of paint guns to support the training. Funds were later provided for a computer and printer. He continued training through December 2017 when he earned a degree and certificate. In an undated resume, the Veteran cited his degree and noted that he was interested in returning to the work force as an auto body estimator. In February 2016, the Veteran was afforded another VA back examination. See C&P Exam, February 2016. The Veteran reported daily pain with intermittent flare ups. Id. at p.3 of 33. The Veteran reported that during flare-ups his pain becomes intolerable and prevents him from getting out of bed. Id. The Veteran reported chronic low back pain with frequent exacerbations and difficulty sitting or standing for prolonged periods. Id. The Veteran’s forward flexion was 90 degrees with pain noted on examination, which causes functional loss. Id. at p.4 of 33. Repetitive use forward flexion was 60 degrees. Id. at p.5 of 33. No ankylosis and no episodes of bed rest was noted. In a March 2017 VA pain consult, the Veteran reported ongoing left low back pain described as aching over the left low back running into the buttock with pain in the left calf and numbness in his toes. See Medical Treatment Record-Government Facility, March 2018 at p.14 of 64. The examiner noted, “narrow base of support, slight asymmetry to the truncal folds, no thoracolumbar swelling discoloration or spasms, moderate tenderness over the left PSIS, sacral and gluteal regions, mildly reduced forward flexion with increased left L5-S1 area pain, full functional extension, moderately reduced rotation.” Id. at p.16 of 64. The Veteran was diagnosed with lumbar disc protrusion, lumbar spondylolisthesis, and lumbar spondylosis. Id. A March 2017 VA x-ray of the lumbar spine revealed five non-rib-bearing lumbar-type vertebral bodies with small riblets at L5, mild intervertebral space narrowing at L4-L5 and L5-S1 associated with anterior endplate spurring, mild facet arthropathy spanning L4-S1, and arterial calcinosis. At the June 2017 Board hearing, the Veteran testified that he was taking medication for his back which helped with the pain, but that nothing stopped the pain. See Hearing Transcript, June 2017 at p.3 of 14. The Veteran testified that on a bad day he would get up in the morning, make two steps, and it feels like he needs to go back down and maybe get in the fetal position, which gives him a little comfort. Id. The Veteran testified that he then takes his medication, put on his brace, sometimes with an ice pack inside of the brace, to get the pain to reside a little bit. Id. The Veteran testified that there were plenty of days where there are things that he cannot do because of his back pain. Id. at p.4 of 14. He made no mention of his vocational rehabilitation program. In a November 2018 VA physician note, the Veteran requested a new back brace and reported that he was doing fine, and his medication was helping. See Capri, November 2018 at p.1 of 29. The Veteran reported that his current pain was sharp and an 8/10. Id. at p.3 of 29. In a November 2018 Board decision, the issue of entitlement to a rating in excess of 20 percent for the Veteran’s back disability was remanded for further development. See Remand BVA or CAVC, January 2018. In December 2018, the Veteran was afforded another VA examination. See C&P Exam, December 2018. The examiner noted the Veteran’s June 2017 testimony and the January 2018 Board remand directives. The Veteran again reported that he had not worked since 2011. The Veteran reported he treats his pain with medication, ice packs, and stretching. The Veteran reported that he has constant low back pain which is worsened with moving, lifting, bending, prolonged walking, and prolonged standing. The Veteran reported that during a flare-up he doubles up his medications and ice packs and increases his stretching. The Veteran reported that his flare-ups are typically precipitated by exertional movement. The Veteran reported that his last flare-up, two months prior, was caused when he moved some furniture and boxes and he was still recovering from that flare-up, but typically his flare-ups only last 2-3 weeks manifesting with severe pain until returning to his normal constant pain. The Board finds that the Veteran’s activities moving furniture and boxes is inconsistent with his long-standing reports of limitations in lifting and bending. The Veteran reported that he experiences left lower extremity radicular symptoms from the left posterior thigh to the calf and feet with pain, numbness, and tingling during his flare-ups. The Veteran reported that his back pain limits his ability to stand or walk for prolonged period and on a good day he can walk about half a block before his pain increases, but is unable to cut the grass, has difficulty bending to put on his shoes and socks, and sometimes needs assistance from his wife to walk to the bathroom or getting out of bed. The Veteran also reported that he does not do housework and sometimes during flare-ups he cannot drive due to the pain, and that the pain is worse in the morning, but his back loosens up slightly once he gets up and moves his back but is still in constant pain. The Veteran did not discuss his activities as an automobile body estimator and supervisor. The examiner noted that his forward flexion was 55 degrees with “reduction of normal excursion decreasing efficiency in performance of physical activities requiring full range of motion.” Evidence of pain with weight bearing was noted with forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Evidence of tenderness to palpation of the paraspinous musculature, greater on the left than right, was noted. The examiner noted that only two repetitions of repetitive use was possible due to pain. No muscle spasm, guarding, decreased muscle strength, or decreased reflexes was noted. The examiner indicated that the Veteran had radicular pain with mild lower left extremity intermittent pain, paresthesias/and or dysesthesias, and numbness. The examiner indicated that the Veteran had mild left sciatic nerve radiculopathy. No ankylosis or IVDS requiring bed rest was noted. The examiner noted that the Veteran regularly wears a back brace and uses a cane intermittently for his back condition and had his back brace with him for the examination. The examiner opined, “the Veteran has functional limitations regarding his back condition that limit his ability to perform activities that require repetitive bending, heavy lifting, climbing, prolonged standing, and prolonged walking.” The examiner indicated that there was evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. In a June 2019 rating decision, the RO granted service connection for the Veteran’s left lower extremity radiculopathy. See Rating Decision-Narrative, June 2019. No additional higher or alternative ratings under different Diagnostic Codes for his lumbar spine disability can be applied during this period. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As a preponderance of the evidence is against a finding that the Veteran’s lumbosacral spine disability has been manifested by forward flexion of the thoracolumbar spine to 15 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months a rating in excess of 20 percent for is not warranted. Therefore, the claim for a rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability is denied The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). “Substantially gainful employment” is employment ordinarily followed by the nondisabled to earn a livelihood with earnings common to the particular occupation in the community where a veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not substantially gainful employment. See C.F.R. § 4.16. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Disability evaluations are determined by evaluating the extent that a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. A total disability rating for compensation may 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 disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16. In the present case, service-connection is in effect for post-traumatic stress disorder (PTSD) at 70 percent (from July 8, 2010); degenerative disc disease, lumbar spine at 20 percent (from August 9, 2007); degenerative arthritis, right thumb at 10 percent (from August 9, 2007); a noncompensable rating for residuals, status post hemorrhoidectomy (from August 9, 2007). See Rating Decision-Codesheet, October 2018. The Veteran’s combined evaluation is 80 percent from July 8, 2010. Therefore, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). The ultimate question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to TDIU. In determining whether unemployability exists, consideration may be given to the claimant’s level of education, special training and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In July 2011, the Veteran reported that his condition had worsened, he was retiring from the military, and would be out of work as of September 9, 2011. See VA Form 21-4138, July 2011. Record show that the Veteran was found not qualified for deployment and further service because of his back disability. Records from his Department of Defense employer indicated that his civilian position was such that he must maintain his status in the Reserve. The Veteran later reported that he retired from federal employment, but he may not have been qualified to continue in at least that position. In July 2011, the Veteran was found by a VA Vocational Rehabilitation Counselor to have an impairment to employability due in substantial part to his service-connected disabilities. See Other (VRE Impairment to Employability), July 2011. In an August 2011 VA Vocational Rehabilitation and Employment (VRE) counseling record narrative report, the counselor indicated that the Veteran’s physical restrictions, symptoms related to mental health, educational deficit/lack of transferable skills, prognosis of back condition, and work requirements resulting from any diagnosed conditions as present factors as impairments to the Veteran’s employability. See Other (VRE Counseling Record-Narrative Report. The counselor also noted that the Veteran’s service-connected disabilities contributed a substantial part to his vocational impairment due to his physical restrictions, environmental restrictions, and ongoing issues related to PTSD. Id. In a September 2011 correspondence, the Veteran’s former attorney representative contended that the Veteran was no longer able to maintain substantial gainful employment and should be considered for TDIU. See NOD, September 2011. There was no mention of the vocational program or its classroom and practical activities. A review of the evidence of record reflects that the Veteran’s VRE rehabilitation plan started September 2011 and continued for six years. See Other (Rehabilitation Plan), August 2011. In January 2013, the Veteran was approved for study for an Associate’s degree in automotive technology through the June 2013 semester. In August 2013, VA authorized the procurement of paint guns, computer and printer to support the training. An allowance for housing was part of the program. He continued training through December 2017 when he earned a degree and a certificate. In an undated resume, the Veteran cited his degree and noted that he was interested in returning to the work force as an auto body estimator. In March 2017, the program of training was closed. The VA specialist noted that upon completion of training, the Veteran was able to secure a position as an estimator and overseer of an automobile body shop using the more than 45 months of funded training. He is not required to perform lifting, bending, carrying or grasping in this position. During the June 2017 Board hearing, the Veteran testified that he had not worked since 2011. See Hearing Transcript, June 2017. In a January 2018 decision, the Board granted a 70 percent rating for PTSD finding that the disability was most closely assessed as social and occupational impairment with deficiencies in most areas. The Board noted, The Veteran reported that he has constant nightmares and sleeps with a weapon. He exhibits obsessional rituals such as checking every room and closet in the house whenever he enters the home. He also exhibits continuous panic and hallucinations as he constantly hears noises that no one else hears. He has deficiencies in mood and has angry outbursts as he gets very angry at his wife and daughter over little things. This evidence corresponds to a 70 percent rating. The Board did not discuss the inconsistencies in the Veteran’s reporting of work, the long period of VA funded college and vocational training, or the evidence that the Veteran procured a position in October 2017 that involved full time work at a business that from the job description as an estimator and “overseer” likely included some contact with other employees and customers. Moreover, in his resume, he noted: “Experienced Autobody estimator at attending customer vehicle needs, looking for a new opportunity with growth. Background includes extensive knowledge of the auto business and its services as well as exceptional negotiation and interpersonal skills.” In February 2018, the Veteran reported that he obtained a position as an Auto Body Estimator on October 1, 2017. See Other (Job Placement Report 2), February 2018; see also Email Correspondence, February 2018. In an electronic message to VA, the Veteran noted that his work “… doesn’t affect my disability.” In a March 2018 VA back examination, the Veteran continued to report that he had not worked since September 2011 because of PTSD and back pain. In a March 2018 application for a TDIU, the Veteran reported that he had not tried to obtain employment since 2011. The Board finds that a TDIU is not warranted at any time during the period of the appeal. The Board considered whether it is necessary to recover records of examination for the reported Social Security Disability benefits. However, even if this agency found the Veteran to be unable to work, the Board finds that since 2011, the Veteran has demonstrated the capacity for employment notwithstanding his service-connected back and mental health disabilities. The records show that the Veteran retired from his federal civilian occupation and Army Reserve service in 2011. However, the Veteran then executed and was successful in a VA funded vocational program that included tuition, housing allowance and procurement of tools and computers. He was able to leave the home, attend class with others, use tools appropriate to the auto body profession, and use a computer. As a sergeant first class, he had demonstrated supervisory skills. There is no evidence that his back or mental health disability underwent any improvement, and at the end of his program, he cited his knowledge and experience including working with others. The Board places very low credibility and weight on many of his reports of both physical and mental dysfunction as well as repeated reports of not working or trying to find work since 2011 while having accepted a position at the end of training in 2017. The record is silent for any further reports of employment status since that time. As such, the Board finds that the probative and competent evidence of record does demonstrate that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation at any time during the period of the appeal. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.