Citation Nr: 20049911 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 14-26 345 DATE: July 27, 2020 ORDER Entitlement to an initial evaluation for a lumbar spine disability higher than 20 percent prior to December 19, 2018, and higher than 40 percent thereafter, is denied. Entitlement to a total disability based on unemployability (TDIU) prior to July 14, 2014 is denied. FINDINGS OF FACT 1. Prior to December 19, 2018, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; and after December 19, 2018, his lumbar spine disability is manifest by forward flexion of the thoracolumbar spine 30 degrees or less. 2. Prior to July 14, 2014, the preponderance of the evidence is against finding that the Veteran is unable to secure and follow substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation for a lumbar spine disability higher than 20 percent prior to December 19, 2018, and higher than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. 2. The criteria for entitlement to a TDIU prior to July 14, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from August 2007 to January 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) other than the undersigned. In February 2018, the Veteran was notified of his right to request another Board hearing. In March 2019 correspondence, the Veteran declined an additional Board hearing. 38 U.S.C. § 7107 (c); 38 C.F.R. §§ 19.3 (b), 20.707. Accordingly, the Board will proceed with adjudicating the claims on appeal. The Veteran’s claims were remanded by the Board in an August 2018 decision. The claims were remanded for issuance of a supplemental statement of the case to consider relevant VA treatment records. A supplemental statement of the case was issued in May 2020. The Board finds that the RO has substantially complied with the August 2018 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran’s claim of service connection for a rib disorder was remanded in the August 2018 decision. In a May 2020 rating decision, the RO granted the Veteran service connection for a rib disorder with an evaluation of 10 percent effective January 30, 2012. This is considered a full grant of benefits sought and is not included in the current appeal before the Board. 1. Entitlement to an initial evaluation for a lumbar spine disability higher than 20 percent prior to December 19, 2018 and higher than 40 percent thereafter The Veteran contends that his current ratings do not adequately contemplate the severity of his service-connected lumbar spine disability. Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the cervical spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). a. Prior to December 19, 2018 Evidence relevant to the severity of the Veteran’s lumbar spine disability includes VA treatment records, private treatment records, VA examinations, and lay testimony. The Veteran’s VA treatment records include an April 2012 primary care note. The Veteran reported having some numbness, and his pain is effectively controlled by tramadol. As to functional limitations, he found that he has to change positions a lot, can only sit in one position or stand for an hour, and can carry about 20 to 30 pounds a short distance. He stated that he can go up and down stairs adequately and can bend, but if he has to do it more than a rare occasion, his pain will increase. He also stated that he cannot jog on treadmill as it jars his back too much. Upon physical examination, he had moderately decreased range of motion with flexion and anterior and lateral flexion. During an April 2013 VA primary care appointment, he stated that his pain is worse across the lumbar spine and occasionally radiates towards his quadriceps bilaterally. He also stated that he has chronic numbness and describes his discomfort as achy in quality. His discomfort was relieved by changing positions frequently. In June 2013, the Veteran had an appointment with the pain management clinic. He reported pain in the lower back with occasional radiation of pain in the groin and thigh bilaterally. Upon examination, he had tenderness and his gait was stable. The Veteran was afforded a VA examination for his lumbar spine disability in July 2013. During the examination, the Veteran stated that he tried to remain active; he can walk, but not jog on a treadmill for a couple of miles or his foot will hurt. He stated that he uses an elliptical and can lift up to 20 pounds, but must hold the object close to his body. The Veteran stated that when he has a flare-up, he does not feel like he can do anything. He can still walk around, but not as much as normal, because walking irritates his back. His flare-ups were relieved with sitting and tramadol. He described his flare-up as an uncomfortable achy feeling that he feels in his back and ribs. Upon range of motion testing, the Veteran’s forward flexion was limited to 80 degrees with objective evidence of pain at 60 degrees. After observed repetitive use testing, his forward flexion decreased to 60 degrees. The examiner opined that the Veteran experienced functional loss due to less movement than normal and pain upon movement. The Veteran was observed to have paraspinal muscle tenderness, but no muscle atrophy or signs or symptoms of radiculopathy. The examiner opined that the functional impact of the Veteran’s back condition limits his ability to perform physical jobs involving lifting, and repeated bending or twisting. The Veteran could perform sedentary job activities, but would require accommodation including short breaks to stretch and ease his back during the course of sitting and flexible scheduling. The examiner also noted that with repeated use or flare-ups, there would be additional limitation in range of motion due to pain that could not be quantified. In a July 2013 statement in support of claim, the Veteran reported that being upright on his feet causes severe lower back pain as if his spine is being compressed like a spring. He also experienced severe pain when sitting or lying down for a long period of time. In March 2014, the Veteran’s VA treatment records include a complaint of pain generally across the lumbar spine that radiates to his tailbone. An acupuncture trial to treat the condition was unsuccessful. Upon examination, the Veteran’s range of motion was adequate. During a May 2014 pain consultation appointment, the Veteran stated that pain in his lumbar spine radiates into his legs bilaterally. The pain ached and felt deep at time. He was observed with a steady and normal gait and his flexion and extension were within normal limits. VA treatment records include an April 2015 attending note where the Veteran stated that his back pain has been pretty stable and is non-radicular. He reported that he continues to have low back pain on a daily basis but is managing well with tramadol. In May 2015, the Veteran described lumbar pain that often radiates to his legs. He was observed with a steady and normal gait without obvious deformities and his flexion and extension were within normal limits. A June 2016 VA treatment note includes a complaint of daily back discomfort which is described as achy and non-radiating. The Veteran presented with full range of motion of the lumbar spine. The Veteran underwent a private lumbar spine evaluation with Dr. A.L. in October 2016. During the evaluation, the Veteran reported that he has chronic low back pain to the tailbone to both legs and knees. He has numbness and decreased sensation on the top of his legs. He stated that sitting, standing, and walking makes the pain worse. He also stated that lifting bothers him and it is easier if he lifts objects that are held closer to his body. He cannot do any activity repetitively, bending makes his pain worse, and sleeping is difficult. He stated that his symptoms are worse when he has flare-ups about two times a week including reduced range of motion. Upon physical examination, the Veteran’s range of motion on forward flexion was to 75 degrees. Dr. A.L. observed that the Veteran could bend backward 5 degrees. He was able to perform a side bend to 20 degrees each way. His muscle strength was full, and his muscle tone and bulk were normal. Dr. A.L. opined that during flare-ups, he estimates that the Veteran’s forward flexion is reduced to 30 degrees based on his report that he cannot bend backwards at all during flare-ups and experiences flare-ups several times per week. It was also Dr. A.L.’s opinion that the Veteran has been at this level of disability since his discharge from the military. The Veteran’s VA treatment records from July 2017 include an attending note where the Veteran reported that his back was stable, and tramadol and a TENs unit help with his condition. In August 2018, the Veteran reported that he is doing well overall and appeared to be at baseline for his medical conditions. In October 2017, the Veteran testified at a Board hearing. The Veteran stated that he has back flare-ups about four to five times per week that last for an hour to a few hours. He stated that he can stand and sit for about 20 to 30 minutes and then alternates positions. He uses a cane in the winter when it is slick outside, and he uses a back brace from time to time. The Veteran states that pain radiates down his legs and can be agonizing and sharp with flare-ups. Based on the evidence of record, the Board concludes that the preponderance of the evidence is against awarding the Veteran a rating in excess of 20 percent. The Veteran’s medical records indicate that his disability is manifest by constant pain and limited range of motion. The medical records on April 2013, May 2014, and May 2015, show that the Veteran has maintained a stable gait throughout the appeal period. During the July 2013 VA examination, his range of motion was initially at 80 degrees and was reduced to 60 degrees after repetitive use testing, warranting a 20 percent evaluation. The remaining medical evidence from March 2014, May 2014, May 2015, and June 2016 shows that the Veteran’s range of motion has been within normal limits. The medical records do not show evidence of ankylosis to warrant a rating higher than 20 percent. Thus, an increased rating in excess of 20 percent is not warranted. The Board has considered the evaluation completed by Dr. A.L. in October 2016 that found that the Veteran’s range of motion would be reduced to 30 degrees during a flare-up which would warrant a 40 percent evaluation. However, the Board provides minimal probative weight to Dr. A.L.’s opinion as it is not based on an accurate interpretation of facts of the case and is primarily based on statements provided by the Veteran. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). During the October 2016 physical examination, the Veteran’s forward flexion was to 75 degrees indicative of only a 10 percent rating. However, Dr. A.L. found that during flare-ups, range of motion would be reduced by 45 degrees due to the Veteran’s statements that he cannot bend backward during flare-ups that occur several times per week. Dr. A.L. also asserted that these are the same symptoms the Veteran has experienced since service discharge. The Board does not find this opinion probative inasmuch as the contemporaneous medical records do not show symptoms of a severity as described by Dr. A.L., nor did Dr. A.L. address such findings in his opinion. Merely four months prior, in June 2016, the Veteran’s range of motion of the lumbar spine was within normal limits. And his next VA treatment note from July 2017 indicates that his back was stable and was treated with tramadol and a TENs unit. Consequently, the Board gives more probative weight to the evidence contained in the VA treatment records. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, decreased range of motion, and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he is unable to bend backwards during flare-ups and is uncomfortable during flare-ups and that his flare-ups occur weekly would not result in symptoms more nearly approximating forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Board also acknowledges that the July 2013 VA examination did not comply with the recent findings from Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” 28 Vet. App. at 166. In Sharp, the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veterans themselves when a flare-up is not observable at the time of examination. 29 Vet. App. at 32. However, the Board finds that a new examination to correct the error would not result in a rating in excess of 20 percent. The remaining evidence of record does not support a finding that the Veteran’s functional impairment during flare-ups is functionally equivalent to forward flexion of 30 degrees or less of the thoracolumbar spine. Additionally, a new VA examination measuring the Veteran’s active and passive lumbar spine range of motions on weight-bearing and nonweight-bearing would not be enough to establish forward flexion of 30 degrees or less. Id. at 20. As previously discussed, the Veteran’s medical records show painful motion and minimally reduced range of motion. Therefore, the Board finds that a remand for a new examination is unnecessary and it would not benefit the Veteran. See Robertson v. Shinseki, 26 Vet. App. 169, 181 (2013), (concluding that remand was not warranted to remedy an error where “such a remand would not tangibly benefit” the appellant). In sum, the evidence shows forward flexion greater than 30 degrees but not greater than 60 degrees, warranting an evaluation of 20 percent, but no higher. Accordingly, entitlement to an evaluation in excess of 20 percent for a lumbar spine disability is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. b. From December 19, 2018 Evidence relevant to the current severity of the Veteran’s lumbar spine disability includes a January 2019 VA examination. The Veteran stated that he is currently having a lot of achiness that is dull in the low back, and sometimes the pain is sharp during flare-ups. He has pain and numbness that radiates down both legs intermittently to the knees and standing or sitting too long aggravates his back. He stated that tramadol helps some. The Veteran reported that his flare-ups are precipitated by activity and overuse and are relieved with tramadol, taking it easy, rest, and an inversion table. He described the severity of his flare-ups as an 8-9 out of 10. Flare-ups occur twice a month with a duration of 2 hours. He stated that he cannot do things around the house during flare-ups. As for functional loss, the Veteran stated that he has difficulty with prolonged walking, he is unable to run, and he does not do as many activities as he used to. During range of motion testing, the Veteran’s forward flexion was to 25 degrees with objective evidence of pain that causes functional loss. After observed repetitive use testing, the Veteran was able to perform at least 3 repetitions without additional loss of function or range of motion. The examiner opined that after repeated use over time and during flare-ups, the Veteran’s functional ability would be limited by pain. There was no evidence of guarding or muscle spasms, muscle atrophy, or ankylosis. There were mild signs and symptoms of radiculopathy including intermittent pain, paresthesias/dysesthesias, and numbness of the femoral nerve. The examiner opined that the Veteran had a diagnosis of invertebral disc syndrome (IVDS), but without any episodes of acute signs and symptoms requiring bed rest prescribed by a physician in past 12 months. As for the functional impact of the lumbar disability, the examiner noted that the Veteran reported last working in September 2018 as he has difficulty with prolonged walking, standing, kneeling down and crouching due to his back condition. The Veteran’s VA treatment records include an April 2019 attending note. The Veteran stated that his discomfort is non-radiating and that he has not had any severe flare-ups. He denied any limitations with day-to-day activities or difficulty performing tasks for tractor-trailer school. He feels he is fully able to carry out demands of his potential employment including push, pull, lift and carry objects up to 60 pounds. His lumbar spine had full range of motion. In May 2019, he underwent a functional capacity evaluation. The evaluator determined that the Veteran’s physical demand level is heavy, based on an 8-hour day. His pain was unchanged/slightly increased with testing. His low back range of motion is grossly within full limits. The Veteran lifted 60 pounds to a 72 inch platform multiple times without difficulty; lifted 90 pounds to a 36 inch platform without difficulty; walked 60 feet while carrying 80 pounds without difficulty; pulled/pushed a sled with 140 pounds without difficulty; stayed in forward flexion of 30 to 60 degrees for more than 1 minute without difficulty; held arms at 72 inches for 30 second intervals without difficulty; kneeled for over 1 minute without difficulty. The Veteran did not demonstrate any symptoms/disability exaggeration behavior during testing. His results indicate that he is able to work at the heavy physical demand level for an 8-hour day. He was able to complete all simulated physical requirements specified for a food driver without difficulty. During a May 2019 rehabilitation consultation, the Veteran reported that his pain is well-controlled, and he reports no functional limitations day-to-day. In November 2019, the Veteran reported that his back is doing pretty good. On physical examination, his lumbar spine had mildly reduced range of motion. The examiner noted that the Veteran has been able to maintain employment as a long-distance truck driver with no recent exacerbations. Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 40 percent for the lumbar spine disability. Although the January 2019 VA examination showed forward flexion to 25 degrees, the Veteran’s VA treatment records show that the Veteran’s lumbar spine range of motion in April 2019 and May 2019 was within normal limits. In November 2019, his range of motion was only mildly reduced. Furthermore, a May 2019 functional capacity evaluation revealed that the Veteran is able to work at a heavy physical demand level for an 8-hour day. A rating of 50 percent requires unfavorable ankylosis of the thoracolumbar spine. For compensation purposes, ankylosis is defined as the thoracolumbar spine being 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (5). The Veteran’s January 2019 VA examination is negative for ankylosis or associated complications. Also, the remaining medical evidence is negative for ankylosis and any associated complications. Furthermore, the Board finds that the symptoms present during the Veteran’s flare-ups and additional functional loss after repeated use are not functionally equivalent to ankylosis. The evidence shows that pain and limitation of motion mildly limits his day-to-day activities, but he is still able to function independently and engage in activities including long-distance truck driving. The Board also notes that the January 2019 VA examiner concluded that the Veteran had IVDS; however, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Additionally, the Board acknowledges that the January 2019 VA examination did not comply with the recent findings from Sharp as the examiner failed to offer estimates of range of motion after repeated use and during flare-ups. However, the Board finds that a new examination to correct the error would not result in a rating in excess of 40 percent. As noted earlier, there is no evidence to support a finding that the Veteran’s symptoms during a flare-up or additional functional loss after repeated use are functionally equivalent to ankylosis. Therefore, the Board finds that a remand for a new examination is unnecessary and it would not benefit the Veteran. See Robertson, 26 Vet. App. at 181. Regarding neurological impairment identified in the January 2019 VA examination, the Veteran has already been granted service connection for radiculopathy of both the left and right lower extremities, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In sum, the evidence shows forward flexion of 30 degrees or less, warranting an evaluation of 40 percent, but no higher. Accordingly, entitlement to an evaluation in excess of 40 percent for a lumbar spine disability is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a total disability based on unemployability (TDIU) prior to July 14, 2014 The Veteran contends that his service-connected lumbar spine disability and associated neurological impairments rendered him incapable of obtaining or maintaining substantially gainful employment prior to July 14, 2014. See Board Hearing Transcript dated October 2017. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is 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, that disability is rated 60 percent or more, or 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, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in a recent precedential decision issued by the United States Court of Appeals for Veterans Claims, they offered guidance in defining “unable to secure and follow a substantially gainful occupation.” In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16(b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Prior to July 14, 2014, the Veteran established service connection for a lumbar spine disability rated as 20 percent disabling, left lower extremity radiculopathy rated as 10 percent disabling, right lower extremity radiculopathy rated as 10 percent disabling, right heel contusion rated as 10 percent disabling, rib disorder rated as 10 percent disabling, and a residual scar on the posterior back rated as 10 percent disabling. The Veteran’s combined rating for compensation purposes from January 30, 2012 was 50 percent, and 60 percent from October 31, 2012. 38 C.F.R. § 4.25. Therefore, the Veteran did not meet the schedular rating criteria for a TDIU. 38 C.F.R. § 4.16(a). However, the Board must still determine whether the Veteran was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The probative evidence is against finding that the Veteran was unemployable due to his service-connected disabilities prior to July 14, 2014. The Veteran has not asserted that he is unemployable due to his service-connected right heel contusion, rib disorder, or residual back scar, and his contention rests solely on his service-connected lumbar spine disability and associated neurological impairments. The evidence shows that the Veteran separated from the Army in January 2012 where his military occupational specialty was a motor transport operator. After separating from the service, he obtained a job as a security guard from 2012 to 2013. During a November 2016 vocational evaluation, the Veteran reported that the job required too much walking and aggravated his back condition. After a year of working part time, the Veteran resigned from the security job. Thereafter, the Veteran attended Syracuse University from 2014 to 2016 where he obtained a Bachelor of Science (BS) degree in Information Management Technology. An October 2016 Vocational Rehabilitation Closure Statement determined that the Veteran was rehabilitated to the point of employability after earning his BS from Syracuse. The counselor noted that jobs that require lifting, standing, squatting, bending, twisting were determined to potentially aggravate the Veteran’s physical disabilities. The Veteran was found to be qualified to obtain a job as an information management specialist or related employment in information technology careers. Based on the Veteran’s testimony, the vocational rehabilitation counselor opined that the Veteran is currently medically stable and fully qualified to perform the job duties. The Veteran has overcome barriers to employment, as the work requirements are entirely compatible with this Veteran’s disability limitations. As of May 2016, the Veteran obtained employment as a Field Services Technician earning $3,600 per month. The vocational rehabilitation counselor found that the Veteran’s employment was considered suitable since it directly utilized job skills developed and did not aggravate his disabilities. The position allows the Veteran to work from home and provide technical assistance to customers over the phone. The Veteran was able to work around his schedule and there were no physical requirements for this job. The Veteran maintained this job for at least 6 months; however, he eventually left this job. The Veteran’s reasons for leaving this job are unclear; however, during the October 2017 Board hearing, the Veteran testified that his back condition made it difficult to perform the tasks required of the job. The Veteran also testified that sometimes he was required to drive about an hour away for repairs, which was too much on his back. However, the October 2016 Vocational Rehabilitation statement noted that the Veteran assisted customers over the phone and the job did not have any physical requirements. Thus, the Board finds that the statements made during the Board hearing are internally inconsistent with other statements of record and lack credibility. Caluza v. Brown, 7 Vet. App. 498 (1995). Furthermore, the Board finds that contemporaneous statements made to the vocational rehabilitation counselor to be more credible. Consequently, the Board finds that the October 2016 opinion from vocational rehabilitation finding that the Veteran is medically stable and qualified to perform job duties related to information management or related information technology careers is more probative. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). The evidence of record then shows that the Veteran obtained a part-time job at Walmart as a cashier. During his November 2016 vocational rehabilitation evaluation with P.A.M., the Veteran stated that Walmart provided stools for him to sit on and allowed him to take breaks due to his back condition. Most recently, the Veteran’s VA treatment records indicate that, in 2019, he obtained a job as a long-distance truck driver. During a November 2019 appointment, the Veteran stated that he enjoys his truck driving job and was planning to drive to New Jersey or Illinois. He stated that he has an adjustable seat in his truck as well as a heated seat, which he finds helpful. He sleeps in his truck five nights per week with a memory foam mattress. The attending physician noted that the Veteran is able to maintain employment as a long-distance truck driver with no recent exacerbations. Medical evidence regarding the impact of the Veteran’s back condition on employment includes an August 2011 Physical Residual Functional Capacity Assessment performed for Social Security Administration (SSA). The evaluator noted that the Veteran cannot do heavy lifting and selection of jobs may be more limited than before his injury. It was also noted that the Veteran may need a nap, but should be able to do so before or after his full work-day. He should be able to perform work duties for more than 2 hours in a day and records do not support that he would only be able to do 2 hours’ worth of work. During the July 2013 VA examination, the examiner opined that the functional impact of the Veteran’s back condition limits his ability to perform physical jobs involving lifting and repeated bending or twisting. The examiner opined that the Veteran could perform sedentary job activities, but would require accommodation including short breaks to stretch and ease his back during the course of sitting and flexible scheduling. In October 2016, Dr. A.L. opined that since his discharge, the Veteran has not been able to maintain substantial gainful employment. Dr. A.L. found that the Veteran has attempted to work as a security guard and a computer repair person, but his back was in too much pain. He also went to school, but his back prevented him from sitting and concentrating on his studies. Dr. A.L. believed that the Veteran is not going to be able to maintain any job that involves bending, twisting, lifting, or overhead activity, or a job that requires lifting, pulling, or pushing 20 pounds or more. Any job that involves prolonged sitting, standing, and walking is going to be difficulty and perhaps impossible for the Veteran to sustain. However, pursuant to Ray v. Wilkie, the determination as to the Veteran’s employability is not solely based on his physical limitations. 31 Vet. App. 58. The determination is based on whether the Veteran has the physical ability to perform the type of activities required by an occupation based on the Veteran’s education, skills, and training. Although the Veteran may be unable to perform a physically demanding job, according to Dr. A.L., the Veteran’s lumbar spine disability does not prevent him from performing the tasks necessary in the field of information management and technology as those jobs require computer skills rather than physical skills. Another vocational opinion was provided by P.A.M. in November 2016. P.A.M. opined that the based on records reviewed, the combination of symptoms and physical limitations the Veteran experiences from his back disability would preclude him from being able to perform the essential work functions of his past work or any competitive job in the national economy. The Veteran reportedly last worked full time in the military and has been incapable of sustaining employment since his separation. In the evaluation, P.A.M. noted the Veteran’s employment as a security guard and at Walmart. The Veteran’s college studies were also mentioned. However, the opinion did not consider the Veteran’s college degree and training as a Field Services Technician, and whether the Veteran’s physical limitations prevented him from working in the informational technology field. As P.A.M.’s opinion did not consider all the relevant evidence of record, the Board finds that the opinion lacks any probative value. See Nieves- Rodriguez, 22 Vet. App. 295. In May 2019, as previously noted, the Veteran underwent a functional capacity evaluation where it was determined that he is able to work at the heavy physical demand level for an 8-hour day. The Board acknowledges the statement made by the Veteran in July 2013 that his back pain prevents him from working. And the August 2013 statement in which the Veteran contended that his back disability prevents the Veteran from sitting at a desk all day because sitting for long periods causes pain. However, the July 2013 VA examiner opined that the Veteran could perform a non-physically demanding job that would allow for accommodations including short breaks to stretch and ease his back during the course of sitting and flexible scheduling. The Board has also considered the fact that the Veteran is in receipt of Social Security disability benefits for his service-connected lumbar spine disability. However, the Board notes that SSA uses different standards from VA in its disability determinations and a decision by SSA is not binding herein. In sum, the Board acknowledges that the Veteran’s lumbar spine disability prevents some physical limitations, including sitting too long, standing too long, bending, twisting, and lifting. Nevertheless, based on the Veteran’s education, skills, and training in the information technology field, the Board finds that the Veteran’s physical limitations do not preclude him from obtaining or maintaining substantially gainful employment in this field. In fact, the evidence of record shows that the Veteran did obtain and maintain employment as Field Services Technician for 6 months in 2016 earning a respectable salary with the flexibility to work from home and manage his own schedule to accommodate the limitations presented by his lumbar spine disability. Although the Veteran testified that he was unable to retain this job because driving aggravated his back, this testimony was not credible. The Board also notes that the Veteran’s lumbar spine disability does not present any mental limitations that would make it difficult for the Veteran to complete the required tasks in the information technology field. As the preponderance of the evidence suggests that the Veteran has the skills and training, as well as the mental and physical capacity to continue employment in the information technology field, the Board finds that the Veteran’s service-connected lumbar spine disability and associated neurological impairments do not prevent the Veteran from securing and following a substantially gainful occupation. Accordingly, entitlement to a TDIU prior to July 14, 2014 is denied and is not referred for extraschedular consideration. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hartford, 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.