Citation Nr: 21001576 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 08-24 861 DATE: January 11, 2021 ORDER Entitlement to an initial rating greater than 20 percent prior to September 13, 2020, and in excess of 40 percent thereafter for service-connected status post revision Left L4-L5 discectomy and right L5-S1 discectomy (service-connected lumbar spine disability) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), from October 1, 2009 through August 11, 2010 only, due to service-connected disabilities, is granted. FINDINGS OF FACT 1. Prior to September 13, 2020, the appellant’s service-connected lumbar spine disability did not manifest with symptoms approximating forward flexion limited to 30 degrees or favorable or unfavorable ankylosis of the entire thoracolumbar spine. From September 13, 2020, the appellant’s service-connected lumbar spine disability did not manifest with symptoms approximating unfavorable ankylosis of the entire thoracolumbar spine. 2. The appellant’s service-connected disabilities caused him to be unable to obtain or maintain gainful employment from October 1, 2009 to August 11, 2010 only. His service-connected disabilities did not render him unable to obtain or maintain gainful employment prior to October 1, 2009, or following August 11, 2010. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent prior to September 13, 2020, and in excess of 40 percent thereafter for the service-connected lumbar spine disability 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 entitlement to TDIU from October 1, 2009 through August 11, 2010 only, due to service-connected disabilities, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from September 2003 to October 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for a lumbar spine disability and assigned an initial noncompensable rating effective October 31, 2006, the first day after the appellant separated from service. This decision was appealed in a notice of disagreement (NOD) received by VA in May 2007 rating decision. A Statement of the Case (SOC) was issued by VA in July 2008. VA received the appellant’s Substantive Appeal (Form 9) in August 2008, perfecting the appeal and declining an optional hearing before the Board. Supplemental Statements of the Case (SSOC) related to this claim were issued by VA in March 2011, January 2012, April 2016, August 2019, and September 2020. These claims were previously remanded by the Board for further development in May 2012, April 2017, and November 2019. As a preliminary matter, the Board notes that 10 separate subsequent rating decisions have been issued in relation to the claim for a higher initial rating for the service-connected lumbar spine disability. Although higher ratings were granted in some of these subsequent rating decisions, the issue remains in appellate status as described above, as the RO did not assign the maximum schedular rating from the award of service connection. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also notes that for the periods from February 9, 2010 to March 30, 2010 and from April 27, 2017 to June 30, 2017, the appellant received a temporary total evaluation for convalescence following surgeries to relieve symptoms of his service-connected lumbar spine disability. 38 C.F.R. § 4.30. In addition, he was assigned temporary special monthly compensation for these periods. 38 C.F.R. § 3.350(i). As such, he is receiving the maximum benefit for these periods and they are not being considered as part of these claims. 1. Entitlement to an initial rating greater than 20 percent prior to September 13, 2020, and in excess of 40 percent thereafter for service-connected status post revision Left L4-L5 discectomy and right L5-S1 discectomy (service-connected lumbar spine disability) is denied. The appellant contends that his service-connected lumbar spine disability is more disabling than currently rated. He asserts that the disability, which has required 3 surgeries going back to his time on active duty, has progressively gotten worse over the years, with only brief periods of improvement following surgery. He contends that he has had periods of needing help from his spouse for the performance of his regular activities of daily living, and that he has had to leave more physically demanding jobs due to his disability. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 20 percent prior to September 13, 2020, and in excess of 40 percent thereafter. Excluded from this consideration are the two periods, discussed above, during which the appellant was assigned a temporary 100 percent disability rating, along with special monthly compensation for convalescence following surgery for this disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an [initial] rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The appellant’s lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the 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.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Given the length of time this appeal has been pending, and the appellant’s multiple surgeries for this disability during that time, the medical history of this disability is extensive. The appellant initially hurt his lumbar spine and required surgery sometime during high school as his records reflect he underwent surgery prior to his enlistment in the United States Army. He was found fit for service upon entry, although this prior surgery was not noted, and entered into active service. While on active service, he again injured his lumbar spine when he fell changing the track on an armored vehicle while serving in Iraq. He underwent a second surgery on his back while on active duty. Just prior to his separation from active service in October 2006, the appellant’s lumbar spine was examined as part of his Medical Board processing. He had surgery to correct a herniated disc in June 2006. At an August 2006 examination, range of motion testing found the appellant capable of forward flexion from 0 to 85 degrees, of extension, right lateral flexion, and left lateral flexion from 0 to 30 degrees, and of right and left lateral rotation from 0 to 45 degrees. No gait issues or muscle spasm were noted. Muscle strength and reflex testing were normal, and a straight leg raise test was negative. The appellant was noted to have bilateral radicular symptoms accompanying his lumbar spine disability. The appellant underwent his first VA examination in October 2007. Range of motion testing showed full range of motion in the lumbar spine in all planes of motion. There was no evidence of guarding, muscle spasm, or painful motion. The appellant was observed with a normal gait. He denied experiencing flare-ups and the examiner found no indication that he had incapacitating episodes requiring bed rest prescribed by a physician. At a subsequent VA examination in November 2009, the appellant reported symptoms of fatigue, decreased motion, stiffness, weakness, spasm, and pain. He reported flare-ups which caused an inability to do activity for 30 minutes to an hour, which could be brought on by bending, stooping, standing, and laying down. Range of motion testing revealed forward flexion from 0 to 60 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 25 degrees, and left lateral flexion, right lateral rotation, and left lateral rotation all from 0 to 20 degrees. He was noted with a guarded gait, but this was not attributed to muscle spasm or guarding. While the examiner does appear to have checked a box noting that ankylosis was found, this appears to be a mistake as range of motion testing showed ankylosis was not present. The appellant at this examination reported that he had recently stopped working due to an increase in symptoms related to his lumbar spine disability. At a VA examination in August 2014, the appellant reported not experiencing any flare-ups related to his disability. Range of motion testing showed full range of motion with no observable evidence of painful motion, and no decrease in range of motion after repetitive use testing. No additional functional limitation was noted. There were no signs of guarding, muscle spasm, abnormal gait, or abnormal spinal contour. Muscle strength testing, reflex testing, and light touch sensation testing were all normal, with no evidence of muscle atrophy and no indication of ankylosis or other neurological impairment. The appellant did not report, and the examiner found no indication of, incapacitating episodes in the prior 12 months which were treated with bed rest prescribed by a physician. The appellant reported no functional impact, and noted he worked for the federal government as a vehicle dispatcher. At a VA examination in April 2016, the appellant described his symptoms as limiting his ability to run, jump, pick up his children, carry heavy loads, perform routine maintenance on his automobile and to do chores requiring bending and stooping. He reported no flare-ups of his symptoms though. Range of motion testing showed forward flexion from 0 to 60 degrees, extension from 0 to 25 degrees, right lateral flexion from 0 to 30 degrees, and left lateral flexion, right lateral rotation, and left lateral rotation from 0 to 25 degrees. There was no observed pain with weight bearing or in non-weight bearing positions. Repeated use testing showed no additional range of motion loss and the examination findings were found to be consistent with reports of additional functional limitations after repeated use over time. Muscle strength testing was generally normal, with some reduced muscle strength in the left knee only. Reflex testing was normal, with no evidence of muscle atrophy and no evidence of any ankylosis of the entire thoracolumbar spine. The appellant did not report, and the examiner found no indication of, incapacitating episodes in the prior 12 months which were treated with bed rest prescribed by a physician. At a VA examination in March 2017, the appellant reported experiencing flare-ups if he moved in certain ways or if he sneezed. Range of motion testing showed forward flexion from 0 to 55 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 25 degrees, left lateral flexion from 0 to 15 degrees, and right and left lateral rotation both from 0 to 30 degrees. There was no evidence of pain in weight bearing or non-weight bearing positions. Repeated use over time was not found to cause additional range of motion loss based on the appellant’s descriptions of his symptoms. He was examined while experiencing a flare-up and was found with no additional range of motion loss. There were no signs of guarding or muscle spasm. Muscle strength testing and reflex testing were normal, with no signs of muscle atrophy. There were no signs of ankylosis. The appellant did not report, and the examiner found no indication of, incapacitating episodes in the prior 12 months which were treated with bed rest prescribed by a physician. At a VA examination in August 2019, the appellant reported flare-ups occurring depending on his activity level and activity type. He reported flare-ups occurring about every other week and lasting several hours at a time, affecting his sleep the night following a flare-up. Range of motion testing showed forward flexion from 0 to 60 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 25 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 30 degrees. There was no pain found in weight bearing or non-weight bearing positions. No additional range of motion loss was seen on repetitive use testing. Estimates were not provided regarding range of motion loss during flare-ups or after repeated use over time. There were no signs of guarding or muscle spasm. Muscle strength testing and reflex testing were both normal, with no signs of muscle atrophy. There were no indications of ankylosis. The appellant did not report, and the examiner found no indication of, incapacitating episodes in the prior 12 months which were treated with bed rest prescribed by a physician. At a VA examination in December 2019, the appellant reported symptoms of pain, which increased during flare-ups. The appellant reported a single flare-up in January 2019 in which his back “went out” and he had to take tramadol for the pain. Range of motion testing showed forward flexion from 0 to 40 degrees, extension, right lateral flexion, and left lateral flexion all from 0 to 15 degrees, and right lateral rotation and left lateral rotation both from 0 to 30 degrees. The appellant’s pain was noted to cause functional loss, including in his ability to bend. There was evidence of pain in weight bearing, but no objective evidence of pain on non-weight bearing. Passive range of motion testing was noted to not be appropriate or safe. No additional range of motion loss was anticipated during periods of flare-up or after repeated use over time based on the appellant’s report of symptoms. There were no signs of guarding or muscle spasm. Muscle strength testing and reflex testing were normal, with no signs of muscle atrophy. There was decreased sensitivity to light touch in the feet bilaterally, but light touch sensation testing was otherwise normal. There were no indications of ankylosis. The appellant did not report, and the examiner found no indication of, incapacitating episodes in the prior 12 months which were treated with bed rest prescribed by a physician. At a VA examination in September 2020, the appellant reported that his condition had stayed the same since his last examination, with regular pain, treated with hydrocodone occasionally and ibuprofen as needed. He reported visiting a chiropractor every 2 weeks. He reported flare-ups, which cause additional pain and necessitate taking medication. Range of motion testing showed forward flexion limited from 0 to 30 degrees, extension, right lateral flexion, and left lateral flexion all limited from 0 to 10 degrees, and right and left lateral rotation, both limited from 0 to 20 degrees. There was no pain in non-weight bearing positions, and passive range of motion testing was noted to be medically inappropriate for this joint. There was no evidence of pain in weight bearing, but evidence of pain on palpation. Repetitive use testing showed no decrease in range of motion testing. Based on the appellant’s statements, no additional range of motion loss was estimated to occur during periods of flare-up or after repeated use over time. There were no signs of guarding or muscle spasm. Muscle strength testing and reflex testing were normal, with no signs of muscle atrophy. There was decreased sensitivity to light touch in the feet bilaterally, but light touch sensation testing was otherwise normal. There were no indications of ankylosis. The appellant did not report, and the examiner found no indication of, incapacitating episodes in the prior 12 months which were treated with bed rest prescribed by a physician. VA treatment records through the period on appeal generally reveal the appellant reporting symptoms of pain in his back that radiates down to his legs. He was occasionally noted with occasionally having an abnormal gait, although his gait was much more frequently observed as being normal. Additionally, he was generally found to have no evidence of muscle spasm, loss of muscle strength, muscle atrophy, decreased reflexes, and was never noted to have ankylosis of the entire thoracolumbar spine. A VA treatment record from August 2011 shows the appellant with flexion “within functional limits,” although a precise measurement was not provided. Private physical therapy notes from May 2011 note forward flexion from 0 to 45 degrees. Subsequent notes from June 2011 show forward bending limited to 28 degrees, with 8 degrees of extension and side bending of 22 degrees to the right and 12 degrees to the left. VA and private treatment records indicate that he underwent surgery for his lumbar spine in February 2010 and in April 2017. Records show that the April 2017 surgery was scheduled after findings of progressive loss of forward flexion over the years. Records from March 2010 show the appellant had significant relief following his surgery in February 2010. A Social Security Administration (SSA) disability examination on April 6, 2010 showed the appellant with forward flexion of the lumbar spine from 0 to 30 degrees, and lateral flexion from 0 to 10 degrees. A lay statement from the appellant, received in August 2020, indicated that the appellant has observed gradual progression of his disability since his separation from service. He noted his prior surgeries for his service-connected lumbar spine disability, and noted that at various times, he has needed his wife to assist him with certain personal care activities. He reported a history of injections, massages, chiropractic care, pain pills, and surgery, with nothing providing the long-term benefit and relief he has been hoping for. After a review of all the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 20 percent prior to September 13, 2020. Additionally, the Board also finds that the preponderance of the evidence is against the assignment of a rating greater than 40 percent from September 13, 2020. The preponderance of the evidence is against assigning any rating for either period based on incapacitating episodes. The evidence of record is against a finding that the appellant was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating during any of the period on appeal. VA and private treatment records include no mention of the appellant ever being prescribed bed rest as treatment for his disability. The appellant himself reported past treatment of injections, massages, chiropractic care, pain pills, and surgery, but has not, at any point, contended that he had incapacitating episodes due to his IVDS which were treated with bed rest prescribed by a physician. As such, a higher rating under this rating criteria is not warranted. The preponderance of the evidence is also against a rating in excess of 20 percent prior to September 13, 2020, and in excess of 40 percent from September 13, 2020 under the General Rating Criteria. The Board acknowledges the appellant’s lay reports of symptoms and that there was functional loss due to, at various times during the period on appeal, pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the appellant’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that that he has an increase in pain during flare-ups or after repeated use over time, that he cannot walk, stand, sit, or bend for prolonged periods, and that he has to take pain medication to control symptoms would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine prior to September 13, 2020, or more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine from September 13, 2020. VA examinations prior to September 13, 2020 have consistently found the appellant with forward flexion of the lumbar spine greater than 30 degrees, even when considering his reports of functional loss. He has only sometimes reported symptoms of flare-ups, stating that they occurred more frequently earlier, and have become less frequent in later years. In two instances the appellant was measured with 30 degrees or less of forward flexion; however, both instances seem to be outlier measurements, with increased forward flexion measured both before and after. Particularly the April 2010 measurement of forward flexion from 0 to 30 degrees was conducted just over a month following the February 2010 surgery the appellant underwent on his lumbar spine. The June 2011 range of motion testing, with forward flexion limited to 0 to 28 degrees was preceded by a May 2011 measurement of forward flexion of 0 to 45 degrees and an August 2011 VA treatment note which found range of motion to be “within functional limits”, also followed by an August 2014 VA examination measurement of forward flexion from 0 to 90 degrees. While the Board notes these results indicate increased functional impairment at the time those examinations were conducted, the Board finds that in light of the totality of the evidence, they do not reveal a period of sustained increase in the appellant’s disability. Periods immediately before these instances, and following these two instances, show the appellant with limitation of forward flexion more consistent with the range of motion loss contemplated by the 20 percent rating. These results of forward flexion more than 30 degrees continued to be found up through the December 2019 VA examination. To grant higher ratings for these brief periods would violate the rule against stabilization of ratings. 38 C.F.R. § 3.344. Additionally, there is no evidence of record which indicates the appellant experienced favorable or unfavorable ankylosis, or symptoms approximating favorable or unfavorable ankylosis, during any of the period prior to September 13, 2020. While he consistently exhibited pain in range of motion testing, the appellant was consistently capable of at least some range of motion in his thoracolumbar spine in all planes of motion. No examiner who observed the appellant’s range of motion testing opined that he had limitation of motion consistent with ankylosis, whether favorable or unfavorable, of the entire thoracolumbar spine. For the period from September 13, 2020, the Board notes that this is the most recent examination of the appellant. He has not reported a worsening of his disability to VA since that examination. The results of that examination did not show any signs of unfavorable ankylosis or symptoms approximating fixation of a spinal segment in a non-neutral position. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the appellant having any other neurological abnormality associated with his spine disability, other than right and left lower extremity radiculopathy, for which he has already been granted a separate rating and which is not currently on appeal. He consistently has denied any neurological impairments related to bowel or bladder incontinence. While the appellant does believe his disability is more disabling than currently rated due to the tremendous pain he regularly experiences and the extensive treatment he has received, which has not provided the relief he hoped for, the Board finds that his functional limitation, even when considering all his symptoms, has not consistently approximated range of motion loss of 30 degrees or less, or favorable ankylosis prior to September 13, 2020. The Board also finds similarly that his functional impairment has not approximated unfavorable ankylosis of the entire thoracolumbar spine since September 13, 2020. Based on the foregoing, the Board concludes that the criteria for an initial rating in excess of 20 percent, and in excess of 40 percent from September 13, 2020, for the appellant’s service-connected lumbar spine disability are not met. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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 rating based on individual unemployability (TDIU), from October 1, 2009 through August 11, 2010 only, due to service-connected disabilities, is granted. The appellant contends that his service-connected disabilities have prevented him from obtaining or maintaining gainful employment during the period his claim has been on appeal. After a review of the evidence of record, the Board finds that TDIU is warranted for the period from October 1, 2009 through August 11, 2010 only, as the appellant has been able to obtain or maintain gainful employment throughout the rest of the period on appeal. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability”. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As an initial matter, the Board notes that, after all the intervening adjustments to the appellant’s ratings since he first filed his claim, the appellant has a current combined disability rate of 80 percent from September 13, 2020. Excluding his periods of temporary total disability for convalescence under 38 C.F.R. § 4.30 and accompanying special monthly compensation, the appellant has a combined disability rating of 70 percent from October 27, 2009. The appellant’s initial combined disability rating from October 31, 2006 was 60 percent. Throughout the entire period on appeal then, and after application of the “one disability rule” in 38 C.F.R. § 4.16(a), the appellant does meet the schedular criteria for TDIU of having either a single disability rated 60 percent, or having a total disability rating of 70 percent or greater, with at least one disability rated 40 percent or greater. While the appellant does meet the schedular criteria, it is still necessary to determine whether the appellant’s service-connected disabilities prevented him from obtaining or maintaining gainful employment during any portion of the period on appeal. The appellant’s work history since his separation from service on October 30, 2006 provides substantial evidence that the appellant has been able to obtain or maintain gainful employment through most of the period since his separation from service. It is important to note that the Board may only consider the appellant’s service-connected disabilities in making this determination on entitlement to TDIU. While the appellant has claimed service-connection for psychiatric illness in the past, and has records indicating he has received mental health treatment and a psychiatric diagnosis, this disability and its functional impact are not being considered in this determination, as the appellant’s psychiatric disability is not service connected. As best the Board can determine, the appellant has had only a few gaps in his work history during the period on appeal. According to his most recent statements, found in his September 2020 application for TDIU, the appellant noted working full-time from April 2009 to October 2009 for Corded Graphics, full-time from August 2010 to August 2011 for Target Corporation, full-time from November 2012 to November 2016 for Chimes DC, and full-time from November 2016 to the present for the Department of Defense. Social Security Administration (SSA) records from December 2010 indicate that the appellant worked full-time from the time of his separation in October 2006 to June 2007 as a material handler, full-time from June 2007 to January 2009 in construction, and full-time from April 2009 to October 2009 as a sheeter operator. At an April 2013 VA examination, the appellant reported working full-time from November 2006 to June 2007 as a fork lift operator in a paper warehouse, full-time from June 2007 to January 2009 as a carpenter’s assistant doing construction, full-time from June 2009 to June 2010 for Target Corporation, part-time from February 2011 to January 2013 in a warehouse, and full-time from November 2012 to the time of the examination for Chimes DC. VA treatment records indicate generally the same timeline of employment. Records from March 2009 indicate that his work in construction ended due to a round of layoffs that included his father and brother. Records from August 2011 reveal the appellant was leaving his job with Target Corporation because of the difficulty of the work involved due to his disabilities, as it required heavy lifting, and was looking to enroll in school so that he would be better able to obtain a job that didn’t require as much physical labor. VA treatment records from April 2012 indicate that the appellant had been working part-time and was finishing his first semester of community college. Records since then have indicated full-time employment. Based on this, the Board finds that the appellant’s only significant period of unemployment related to his disabilities seems to have occurred from October 2009 to August 2010 when he began working for Target Corporation. Prior to this, he appears to have had a sustained period of employment from the time he separated from service until October 2009. Subsequent to that, he had a period of part-time employment, along with enrollment in academic coursework. He began working full-time again in November 2012 and has worked full-time with no interruptions since. The Board notes that the appellant has not argued that any of his periods of employment were not substantially gainful. The Board has also reviewed the appellant’s service treatment records, his VA examinations, his private and VA medical treatment records, his lay statements, and his entire claims folder. Prior to his separation from service, the appellant was placed on a temporary physical profile that limited the amount of running he was required to do based upon the severity of his knee and lumbar spine disabilities, but noted no other functional limitations. At an October 2007 VA examination of the appellant’s thoracolumbar spine, the appellant reported having worked full-time as a carpenter’s assistant for the prior 4 months. At that examination, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, that the appellant’s disability did not impact the appellant’s performance of usual daily activities or impair his employment. At a November 2009 VA examination of the appellant’s thoracolumbar spine, the appellant reported a worsening of his symptoms of lumbar pain that had caused him to leave his current employment. An April 2011 VA examination of the appellant’s knees and hydronephrosis found no additional functional limitations or other effects on the appellant’s ability to perform the regular activities of daily living. An April 2013 VA examination of the appellant’s peripheral nerves found that the diagnosed peripheral neuropathy caused no impact on the appellant’s ability to work. At an August 2014 VA examination of the appellant’s thoracolumbar spine, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, that the appellant’s lumbar spine symptoms caused no significant functional impact on the appellant’s then current employment as a vehicle dispatcher. At an April 2016 VA examination of the appellant’s thoracolumbar spine, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, the appellant’s thoracolumbar disability prevented him from doing physically demanding work which would require prolonged walking, running, jumping, heavy lifting, or stooping, but found that more sedentary labor, such as the work the appellant was doing at the time as a vehicle dispatcher, was not affected. At a March 2017 VA examination of the appellant’s thoracolumbar spine, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, that the appellant’s lumbar spine disability negatively impacts his ability to perform occupational tasks that require bending, stooping, climbing, heavy lifting, and prolonged standing, sitting, or walking. At an August 2019 VA examination of the appellant’s thoracolumbar spine, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, that the appellant’s disability negatively impacted his ability to perform occupational tasks that require frequent bending at the waist, heavy lifting, climbing, prolonged standing, or prolonged walking. A corresponding examination of the appellant’s knees did not find any additional functional limitations due to that disability. At a December 2019 VA examination of the appellant’s thoracolumbar spine, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, that the appellant’s disability did impact his ability to work by limiting his ability to bend, carry, and lift during flare-ups. VA examinations from February 2020 found no additional functional impact from the appellant’s service-connected shoulder, wrist, knee, and foot disabilities, At a September 2020 VA examination of the appellant’s thoracolumbar spine, the examiner opined, based on the appellant’s report of symptoms, a review of the record, and the examination findings, that the appellant’s disability did impact his ability to work by limiting his ability to bend, and perform tasks involving prolonged sitting, standing, walking, carrying, and lifting. SSA records from 2010 indicate that the appellant’s ability to walk, stand, sit, stoop, or bend for more than 15 minutes at a time is limited due to his service-connected lumbar spine disability. The SSA reconsideration analysis noted that the appellant was capable of performing most of his activities of daily living, although some do cause pain. This examination also noted the appellant could not walk for long periods and had pain when lifting more than 40 pounds. At the time of this final determination, it was found that the appellant did have significant residual functional capacity, in light of both his service-connected disabilities and his nonservice-connected mental health condition, but that his functional limitations only applied to work that involved heavy lifting. Within the SSA records is an opinion from the appellant’s treating physician at the VA that he was unable to work due to his lumbar spine disability from October 23, 2009 to March 24, 2010, at which point he was cleared to return to work with the only limitation being on lifting more than 50 pounds at a time. Considering all this, the Board finds that entitlement to TDIU is warranted for the period from October 1, 2009 to August 11, 2010. It appears that during this period, the appellant developed increased pain in his thoracolumbar spine, that eventually necessitated him having surgery in February 2010. Treatment records immediately following his surgery indicate that he would not be able to return to work until he had completed his physical therapy in August 2010. The appellant did then return to work in August 2010, taking a job with Target. Considering this, the Board finds that it was at least as likely as not that the appellant was unable to obtain or maintain gainful employment during this period due to symptoms of a service-connected disability and recovery from surgery for that disability. Prior to October 1, 2009, the Board notes the appellant was almost continually employed from separation from active service to October 2009. There appears to be a brief period of unemployment from January 2009 to April 2009, which the appellant has attributed to regular layoffs in his construction job, indicating that his father and brother were also laid off at the same time. Other than that, he was able to obtain multiple different jobs, without any significant breaks in employment. From August 11, 2010, the appellant worked for just over a year for Target Corporation. Records do reflect that the kind of manual work he was doing was getting too difficult due to his thoracolumbar disability towards the time he separated from this employment in August 2011. It appears though, that the appellant began preparing for, and did enroll in an educational course and part-time work within a few months of leaving Target in August 2011. The Board finds that the combination of being able to maintain part-time work with an academic schedule is substantially probative evidence of an ability to obtain or maintain gainful employment, as many of the attributes necessary for successful completion of an academic program are those needed to obtain or maintain gainful employment. This includes skills such as time management and the ability to complete complex tasks. From November 2012, it appears the appellant has maintained full-time gainful employment, with no interruptions, to include work for the federal government. The Board finds this to be strong evidence that the appellant’s service-connected disabilities did not prevent the appellant from obtaining or maintaining gainful employment from August 2011. Considering all this, the Board finds that the preponderance of the evidence is against entitlement to TDIU prior to October 1, 2009, or after August 11, 2010. 38 C.F.R. § 4.16. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.