Citation Nr: 21000553 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-28 392 DATE: January 5, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent disability rating for intervertebral disc syndrome, thoracolumbar spine (previously rated as lumbar spine DDD/DJD) is denied. Entitlement to an initial evaluation in excess of 20 percent disability rating for radiculopathy, right lower extremity is denied. Entitlement to an initial evaluation in excess of 20 percent disability rating for radiculopathy, left lower extremity is denied. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence of record shows that the Veteran’s service-connected intervertebral disc syndrome, thoracolumbar spine disability manifested in pain and limitation of motion with forward flexion of greater than 30 degrees. 2. The Veteran’s peripheral neuropathy of the right lower extremity was manifested by moderate neurological symptoms. 3. The Veteran’s peripheral neuropathy of the left lower extremity was manifested by moderate neurological symptoms. 4. Resolving the benefit of the doubt in the Veteran’s favor, the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for intervertebral disc syndrome thoracolumbar spine (previously rated as lumbar spine DDD/DJD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating in excess of 20 percent for radiculopathy, right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 20 percent for radiculopathy, left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1963 to September 1966 and in the U.S. Air Force from June 1967 to February 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from the April 2012, October 2016, and April 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, this matter was remanded for further development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the lumbar spine disability (and following the grant of service connection by the Board in September 2016), the RO implemented the Board’s decision in an October 2016 rating decision. At that time, the RO assigned a 10 percent rating effective May 31, 2011. Thereafter, in an August 2018 rating decision, the RO granted a 20 percent rating for the lumbar spine disability effective July 6, 2018. The RO also assigned separate disability ratings for the Veteran’s bilateral lower extremity radiculopathy effective July 6, 2018. In the July 2019 rating decision, (following the Board’s July 2019 decision) the RO granted an earlier effective date for the Veteran’s bilateral lower extremity radiculopathy, effective May 31, 2011. The RO also implemented the Boards decision to increase the initial lumbar spine disability rating to 20 percent effective May 31, 2011. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to an initial evaluation in excess of 20 percent disability rating for intervertebral disc syndrome thoracolumbar spine 2. Entitlement to an initial evaluation in excess of 20 percent disability rating for radiculopathy, right lower extremity 3. Entitlement to an initial evaluation in excess of 20 percent disability rating for radiculopathy, left lower extremity The Veteran maintains that his lumbar spine disability is more severe than what is contemplated by the currently assigned disability ratings. The Board notes that the Veteran’s radiculopathy is part and parcel of the intervertebral disc syndrome thoracolumbar spine disability and will be addressed herein. The Veteran received a rating decision awarding him service connection in October 2016, for his intervertebral disc syndrome thoracolumbar spine (previously rated as lumbar spine DDD/DJD), with an effective date of May 31, 2011, therefore the appeal period begins in May 2011. The Veteran received a rating decision awarding him service connection in August 2018 for bilateral radiculopathy, in the lower extremities, and a July 2019 rating decision awarded the Veteran with an effective date for these conditions on May 31, 2011, therefore the appeal period begins in May 2011. The Board notes that the following claim is rated under hyphenated diagnostic codes. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran’s intervertebral disc syndrome thoracolumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Id. at Note 1. 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. 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. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for intervertebral disc syndrome thoracolumbar spine disability based on incapacitating episodes. The Veteran does not have IVDS or 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. The Veteran’s July 2018 and April 2020 VA examinations note the Veteran has a diagnosis of IVDS, but he did not have any incapacitating episodes which required bed rest prescribed by a physician within 12 months of either of these examinations. The preponderance of the evidence is also against a rating in excess of 20 percent for intervertebral disc syndrome thoracolumbar spine under the General Rating Criteria. In March 2012 the Veteran underwent a C&P examination to determine service connection for his lower back disability. The Veteran reported working as a banker and as a property manager. He provides bookkeeping services and does tax return preparation as a side job currently but states he is no longer working as a property manager due to his knees, back, and neck. The Veteran states his low back pain interferes with his sleep. He has not reported any incapacitating episodes but just nagging and constant pain. The Veteran indicated that he participated in physical therapy years ago and it helped temporarily. The Veteran also reported flare-ups that made it difficult for him to lift anything more than 5 pounds repetitively or it made his back worse. If he stood on his feet for more than 10 minutes, it made his back worse. The Veteran’s coordination was normal, but he was unable to toe walk, heal walk, or heel to toe walk, due to back pain. The examiner stated that the lumbar spine DDD/DJD had mild functional limitation. The remaining portions of the examination report, to include range of motion testing, were not completed by the examiner. In January 2015, the Veteran’s private doctor submitted a letter on behalf of the Veteran indicating that the Veteran’s back condition was related to military service In July 2018, the Veteran was afforded a VA examination for his back condition. The examiner noted that the Veteran was diagnosed with lumbar spine DDD/DJD in 1978, and bilateral lumbar radiculopathy in May 2004. The Veteran’s history notes that in 1971 he complained of lower back pain, but it improved following surgery in 1978. The Veteran reports having difficulty with light physical activity. The Veteran also indicates that “basic activities of daily living require prolonged preparation time secondary to back pain.” The examination shows a range of motion of the thoracolumbar spine as follows: forward flexion 40 degrees, extension 5 degrees, right lateral flexion 15 degrees, left lateral flexion 25 degrees, right lateral rotation 10 degrees, and left lateral rotation 15 degrees. The examiner stated that the Veteran’s range of motion stops with the onset of pain, which limits his functional capacity and restricts his mobility. The examiner also noted that when the Veteran is standing up straight, he is positioned forward at a 5-degree angle. The examiner indicated that pain is noted on examination and causes functional loss. The Veteran reported that he has flare-ups. The Veteran was unable to perform repetitive use testing, due to a “fear of pain,” therefore maneuvers were not performed. There was also pain with weight bearing. The Veteran has guarding, muscle spasms, that result in abnormal gait or abnormal spine contour. The Veteran has normal muscle strength, no muscle atrophy, or ankylosis of the spine. Although the Veteran was noted to have IVDS, he did not have any incapacitating episodes which required bed rest prescribed by a physician. The Veteran has decreased sensation bilaterally on his lower extremities for his L2, L3/4, L4/L5/S1, and L5. The examiner indicated that the Veteran had “moderate” sciatic nerve root radiculopathy of both lower extremities. The symptoms manifested as intermittent pain; paresthesias and or dysesthesias; and numbness, for the sciatic nerve. In April 2020, the Veteran was afforded a VA examination for his back condition. The examiner noted that the Veteran was diagnosed with degenerative arthritis of the spine in 2011 and invertebral disc syndrome thoracolumbar spine in April 2020, including bilateral lower extremity radiculopathy. The Veteran reported that he injured himself while carrying large airplane equipment in the military, and in 1978 had surgery for his lumbar spine. The Veteran’s current symptoms include, “constant sharp, shooting, and aching pain in his low back that radiates from his low back, to his buttock, and to his feet.” He also reports numbness and tingling in his legs. The Veteran reports that prolonged sitting, standing, lying flat, lifting, bending, and kneeing makes his back pain worse. The examination shows a range of motion of the thoracolumbar spine as follows: forward flexion 55 degrees, extension 5 degrees, right lateral flexion 15 degrees, left lateral flexion 20 degrees, right lateral rotation 15 degrees, and left lateral rotation 20 degrees. The examiner noted objective pain for each test. The Veteran was able to perform repetitive use testing with at least three repetitions for his back, which did not result in loss of function or range of motion after three repetitions. The Veteran reported that he does not have flare-ups. Passive testing was not performed as the examiner indicated it is not feasible to do this in a safe and reasonable manner. The Veteran’s additional functional loss consists of having difficulty reaching for items on the floor. The Veteran also has guarding, muscle spasms, that result in abnormal gait or abnormal spine contour. The Veteran has normal muscle strength, and no muscle atrophy, or ankylosis of the spine. The Veteran has decreases sensation bilaterally on his lower extremities for his L2, L3/4, L4/L5/S1, and L5. He has moderate bilateral: intermittent pain; paresthesias and or dysesthesias; and numbness, for the sciatic nerve. The examiner noted that the Veteran had bilateral moderate radiculopathy. Although the Veteran was noted to have IVDS, he did not have any incapacitating episodes which required bed rest prescribed by a physician. The Veteran uses a brace regularly for intervertebral disc syndrome thoracolumbar spine and bilateral lower extremity radiculopathy. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran has intense flare-ups two times per week, and does not allow the Veteran to be active for a couple of hours, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Specifically, throughout the relevant rating period, the Veteran’s intervertebral disc syndrome thoracolumbar spine disability was manifested by pain and limited motion with forward flexion limited to, at its most severe, 40 degrees. In addition, there is no indication in the record that the Veteran had ankylosis of any portion of the spine. Under Diagnostic Code 5243, a higher rating of 40 percent is not for assignment unless forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or there is ankylosis of the thoracolumbar spine. Thus, the range-of-motion measurements and symptoms of the Veteran’s degenerative arthritis of the lumbar spine recorded during the relevant rating period are consistent with a rating of no higher than 20 percent under Diagnostic Code 5243. The Board further notes that Note (1) under Diagnostic Code 5243 directs that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Therefore, the Board has also considered whether the Veteran is entitled to increased ratings for his service-connected radiculopathy of the bilateral lower extremities, which is associated with the service-connected for intervertebral disc syndrome thoracolumbar spine disability. The Veteran is currently in receipt of a 20 percent ratings from May 31, 2011, for his service-connected radiculopathy for each lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis. In this case, as noted above the March 2012 VA examiner did not include range of motion testing or information regarding radicular pain or any other signs or symptoms due to radiculopathy. The July 2018 and April 2020 VA examiners indicated that the Veteran’s radiculopathy was no worse than moderate in severity. The RO awarded the Veteran service connection for his radiculopathy effective May 2011, the date of his claim. In view of the evidence of record, the Board concludes that, there is no indication in the record that the Veteran’s radicular pain was equivalent to any greater than moderate incomplete paralysis at any time during the appeal period. Therefore, the Board concludes that the record does not warrant a rating higher than 20 percent for the Veteran’s bilateral radiculopathy in his lower extremities. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for intervertebral disc syndrome thoracolumbar spine. In addition, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his bilateral radiculopathy in his lower extremities. 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. 4. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks entitlement to a TDIU. The Veteran’s claim for entitlement to a TDIU is part and parcel to the increased rating issue on appeal. Therefore, the applicable rating period is from May 31, 2011, the effective date of service connection for these disabilities, through the present. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. 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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In relation to his service-connected back disabilities, the Veteran was in receipt of a rating of 20 percent for intervertebral disc syndrome thoracolumbar spine under Diagnostic Code 5243; a rating of 20 percent under Diagnostic Code 8520 for radiculopathy, right lower extremity and 20 percent for radiculopathy, left lower extremity, throughout the relevant appeal period for each of the Veteran’s back disabilities. He was also service connected for depressive disorder associated with migraine headaches, rated as 30 percent disabling from May 31, 2011 and 70 percent from January 14, 2015. The Veteran was service connected for allergic rhinitis with polyps, rated as 30 percent disabling from May 31, 2011; migraine headaches rated as 30 percent disabling from May 31, 2011; loss of smell rated as 0 percent disabling; residual atrophy from left testicular torsion rated as 0 percent disabling, and left inguinal and lumbar spine scars rated as 0 percent disabling. The Veteran’s combined rating for compensation has been 90 percent, effective from January 14, 2015. Prior to that it was 80 percent, effective from May 31, 2011. Here, the Veteran meets the schedular requirements throughout the appeal period. As for the time period between May 31, 2011 and January 14, 2015, in order to meet the schedular requirements the Veteran must either (1) have a single service-connected disability ratable at 60 percent or higher, which is not met, or (2) the Veteran can meet the schedular requirements as a result of having two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disabilities to bring the combined total to 70 percent or more. Here, the Veteran’s combined rating is 80 percent, but he does not have any disabilities that are 40 percent or higher. However, under 38 C.F.R. § 4.16, when determining whether the single disability is met, you may consider multiple disabilities to be one disability if they are of the same etiology. Here, the back and the bilateral radiculopathy are of the same etiology, so they may be combined and considered a single disability under 38 C.F.R. § 4.16. The Veteran’s back and bilateral radiculopathy have a combined rating of 50 percent. Thus, the Veteran meets the schedular requirements during the initial time period. In addition, the Veteran meets the schedular requirements from January 14, 2015, as his depressive disorder is rated at 70 percent and he has a combined rating of 90 percent. Turning to the evidence, the Veteran raised his TDIU claim as part and parcel to his May 2011 claims. According to the Veteran’s application for increased compensation based on unemployability he worked as a full-time property manager until 2011, and then reduced his hours to part-time. The Veteran reported he completed 4 years of college. The Veteran reported he provides bookkeeping services and does tax return preparation as a side job but, can no longer work as a property manager due to his knees, back, and neck. See March 2012 C& P note. The medical evidence shows that the Veteran’s intervertebral disc syndrome thoracolumbar spine disability symptoms include “sharp, shooting and aching pain.” The Veteran reports being limited in prolonged sitting, standing, lying flat, lifting, bending, and kneeling. The Veteran also reports that his back pain interferes with his sleep, with constant nagging pain. However, the April 2020 examiner noted that the Veteran would be able to do work that involves sitting more of the time but may involve walking or standing for brief periods of time. The Veteran has provided several assessments regarding his inability to work, and statements in support from his family. In January 2015, the Veteran obtained a mental assessment on his ability to work. The examiner noted that the Veteran is socially isolated and withdrawn and has assistance performing his daily living tasks. The Veteran suffers from chronic sleep impairment including insomnia. The Veteran reports Mild memory loss, difficulty establishing and maintaining relationships, difficulty adapting to stress circumstances including work, disturbances of motivation and mood, near-continuous panic or depression affecting his ability to function effectively, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted that the Veteran’s migraines, allergic rhinitis aggravate his depressive disorder. The examiner also included a summary of his family members assessments, that the Veteran is more withdrawn, and is in pain. The examiner ended the assessment by stating that the Veteran’s unspecified depressive disorder is more likely than not the result of service. In October 2018 the Veteran was interviewed in conjunction with an assessment. The Veteran has had two failed marriages and has separated from the third. He has difficulty with relationships and isolates. The Veteran reported that his back pain and migraines make it difficult to concentrate. The Veteran is depressed and has lower energy and is agitated from his chronic pain. He would miss three or more days a month of work due to his mental health problems. The examiner stated that the Veteran’s mood swings would cause him to become “extremely depressed, socially detached and irritable with low frustration tolerance leading to more conflicts at work.” The examiner also noted that it would be difficult for the Veteran to listen to others and take directives. The examiner also discussed the potential effects of the Veteran’s chronic sleep impairment. The examiner stated that the sleep impairment may make it more difficult for the Veteran to concentrate, cause more mistakes, become easily irritable and agitated with coworkers, supervisors or customers. It may also impact his attendance. In February 2019, the Veteran obtained an assessment regarding vocational training. The examiner indicated that the Veteran’s service-connected back, allergic rhinitis, decreased sense of smell, headaches, atrophy of testes, depressive disorder (not yet service connected), have no impact on the Veteran’s ability to work. However, after reviewing statements from the doctors in conjunction with one another the examiner determined that the Veteran is unable to secure skilled or unskilled employment, considering the totality of the disabilities. The Board acknowledges the numerous letters written in support of the Veteran by his family members. The overarching theme is that the Veteran’s physical and mental health disabilities impact his ability to work and his ability to develop and nurture relationships. He does not leave the house very often, and when he leaves the house he is withdrawn. He spends most of his day watching television. His daughter assists him with grocery shopping and cleaning. In view of the above, the Board finds that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Specifically, the evidence of record indicates that the Veteran’s depression, headaches, and back pain limits his ability to obtain substantive employment. The Board acknowledges that the Veteran is able to work for small periods of time but, would need frequent breaks. The Veteran’s physical disabilities may also limit his ability to concentrate. In essence, the Veteran would need to work at his own pace and be excused for frequent and unscheduled absences. As to the Veteran’s mental state, his depression influences the relationships he has with other people. The examiner notes it would be difficult for the Veteran to take instructions from an employer, or to concentrate due to his chronic sleep impairments. The Board also acknowledges that the Veteran has other nonservice-connected disabilities, that may further limit him. However, even without these disabilities, the Veteran’s depressive disorder alone, limits him, such that he cannot secure or follow a substantially gainful occupation. The Board concludes that resolving reasonable doubt in favor of the Veteran the probative evidence of record demonstrates that the Veteran was unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.