Citation Nr: 21004078 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 07-37 940 DATE: January 25, 2021 ORDER 1. Entitlement to a disability rating in excess of 40 percent for chronic low back syndrome is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, other than posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s chronic low back syndrome has not manifested with unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, or with incapacitating episodes having a total duration of at least 6 weeks in any previous 12-month period. 2. The Veteran’s service-connected chronic low back syndrome, right wrist scar, and uterine fibroids with menorrhagia and anemia, do not preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for chronic low back syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5243. 2. The criteria for entitlement to a TDIU rating, other than due to PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to May 1989 and from November 1990 to May 1991. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a Board hearing held in December 2008. A transcript of the hearing is included in the claims file. This case has a complicated procedural history, which was most recently explained in the April 2017 Board decision, which remanded the matters on appeal to the Agency of Original Jurisdiction (AO to: ask the Veteran to provide a description of the number of incapacitating episodes she had experienced over a 12-month period as a result of her service-connected chronic low back syndrome; identify any physician or medical professional who has prescribed bed rest and treatment for this disability since 2006; describe to the Veteran the definition of incapacitating episodes for VA purposes; and, issue a supplemental statement of the case (SSOC) if any benefit was denied by the AOJ. The AOJ sent a letter to the Veteran and her attorney in August 2017 asking for the requested information, as well as providing her with the definition of an incapacitating episode, and issued SSOCs in September 2017 and April 2020. There was substantial compliance with the Board’s April 2017 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased Rating for Chronic Low Back Syndrome The Veteran contends that the disability rating for her service-connected chronic low back syndrome should be rated higher than the currently-assigned disability rating. Specifically, she asserts that she has had incapacitating episodes due to back pain. For example, in an October 2017 statement, she and her attorney asserted that the Veteran has had more than 10 incapacitating episodes during which she was immobilized and unable to perform the functions of daily living, although her doctors did not specifically prescribe bed rest for such symptoms. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran filed an increased rating claim for her low back disability on February 23, 2006. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula, a 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). The Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Correia, 28 Vet. App. at 169-70. Furthermore, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. The Court explained that an examiner must do all that reasonably could be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in that case that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. Sharp, 29 Vet. App. at 26. Initially, the Board finds that throughout the appeal, a disability rating in excess of 40 percent for the Veteran’s chronic low back syndrome is not warranted. The Veteran’s chronic low back syndrome has been rated pursuant to the General Rating Formula. Higher evaluations are available if the evidence shows that the Veteran’s low back disability manifested with unfavorable ankylosis of the entire thoracolumbar spine or the entire spine under the General Rating Formula, or with incapacitating episodes having a total duration of at least 6 weeks in any previous 12-month period under the Formula for Rating IVDS Based on Incapacitating Episodes. An April 2005 VA primary care note showed a normal magnetic resonance imaging (MRI) scan of the back. A physical evaluation showed no tenderness in the lower back, no palpable spasm or noted lateral deviation of the spine. The Veteran had had moderate tenderness over the sacroiliac joints bilaterally. The impression was low back pain. An October 2005 VA pain clinic consultation note showed that the Veteran’s spine was normal in curvature but had abnormal flexion and extension of the lumbar spine. The October 2005 VA examination for Gulf War Veterans showed that the Veteran’s spine was nontender and ranges of motion were normal except for the low back mid-spine, which was tender. The examiner diagnosed the Veteran with chronic pain secondary to degenerative joint disease (DJD) of the low back at the L4-L5 and L5-S1 spinal segments. A February 2006 VA examination for the Veteran’s spine showed that she had some hyperlordosis of the lower lumbar spine. On motor evaluation, her major muscle groups of her lower extremities were grossly intact and she had negative straight leg raises. She ambulated with a non-antalgic gait. She had painful range of motion with forward composite flexion of the spine and pelvis of approximately 60 degrees, extension to 10 degrees, lateral bending to 20 degrees bilaterally, and lateral rotation of 30 degrees bilaterally. She reported that extension hurt the most and the examiner noted that the range of motion testing was not further inhibited on repetitive-use testing. The Veteran reported that she had incapacitating episodes three to five days per month when she was unable to go to work, and that she had flare-ups three times per week in which she had to lay down until the flare-ups resolved. The examiner diagnosed her with a chronic low back strain. The Board notes that this examination did not note any symptoms of unfavorable ankylosis of the entire thoracolumbar or the entire spine, and that although the Veteran reported that she had incapacitating episodes, the examiner did not note that any such episodes were prescribed bed rest by a physician and were treated by a physician. In a November 2006 statement associated with the Veteran’s application for Federal Medical Leave Act (FMLA) benefits, the Veteran was noted to be taking FMLA from her job at the post office due to low back pain. The Board notes that a March 2007 letter from her employer allowed her to use FMLA benefits and leave due to her psychiatric symptoms, rather than her chronic low back syndrome. In a February 2007 statement, the Veteran requested a 40 percent evaluation for the arthritic symptoms in her back. She stated that it was not required that she stay in bed when she had an incapacitating episode, but she did endorse symptoms of an inability to stand, walk, sit, or move for a long period of time. These symptoms required her to just stay in bed with a heating pad, and that these episodes lasted for three to five days. She stated that she had incapacitating back pain, a severe curve, and arthritis in the spine, and that her VA doctor reported to her that there was nothing to be done because pain medications and injections were not working any longer. In a September 2007 evaluation associated with her application for FMLA benefits, a medical professional noted that the Veteran had a severe chronic back condition of arthritis and a spinal curve, and that this disability affected her ability to lift, sit, stand, and move at a steady pace. This disability also interfered with her daily functions and activities. The medical professional noted that the Veteran was not presently incapacitated, but that during episodes or chronic attacks, she was restricted to bedrest as previously stated on FMLA documentation, and restricted to light movement three to five days per month, and that 60 days of FMLA benefits were authorized for the year. The Board notes that unlike the VA definition of “incapacitating episodes,” which requires bed rest prescribed by a physician and treatment by a physician, this document defined “incapacity,” for purposes of FMLA, as an inability to work, attend school or perform other regular activities due to the serious health condition, treatment thereof, or recovery thereof. The Veteran underwent another VA examination for her lower back symptoms in October 2007 during which she reported that over the past year, she has had one incapacitating episode per month during which bedrest was prescribed by her physician. The Board notes that this contention by the Veteran that she was prescribed bed rest by her physician is based on the Veteran’s statement to the VA examiner, and that the Board is unable to locate any such prescription by a physician otherwise in the record. She reported that her low back symptoms caused her to take FMLA leave several days each month due to the pain. She also reported that activities of daily living were affected as well in that it was difficult for her to sleep and it was more difficult for her to complete all activities of daily living. She reported that flare-ups occurred three times per week, each lasting 24 hours, and that she had to lie down with a heating pad during flare-ups. She occasionally wore a back brace. An MRI scan of the lumbosacral spine without contrast showed that the spinal segments and disc spaces were normal in appearance without evidence of degenerative disc disease (DDD), disc herniation, or congenital or acquired spinal stenosis. There was no spondylosis or spondylolisthesis and no evidence of any underlying inflammatory or neoplastic disease. The examiner noted that the Veteran essentially had a normal MRI scan of the lumbosacral and lower thoracic spine. No evidence of disc herniation, spinal stenosis, or significant degenerative disease was noted. In the November 2007 Substantive Appeal to the Board (VA Form 9), the Veteran contended that she had continued discomfort, an inability to walk at any given time without severe pain, constant nerve distress in her left leg, and an inability to sit without placing pressure on her spine. She stated that she was constantly mixing prescription medication in order to find relief. In a December 2007 VA primary care nursing note, the Veteran complained of chronic pain with frequent exacerbations of pain in the low back. She stated that she just could not get out of bed. She was noted to be working at the post office and the author of the note indicated that the Veteran was upset with her because she would not sign an FMLA leave note which would allow the Veteran to take up to 12 weeks of leave per year due to her service-connected disabilities. The medical professional scheduled the Veteran for a functional capacity consultation, which the Veteran underwent approximately a week later. Although this consultation showed that the Veteran was not capable of performing her work as a postal service parcel employee, and that she indicated that she was crippled on the Oswestry low back disability questionnaire, i.e., she self-reported that her back pain impinged on all aspects of her life both at home and at work and in which positive intervention was required, the Board notes that this consultation also showed that the Veteran scored a “3” on the Waddell’s inappropriate symptoms questionnaire, which was indicative of inappropriate illness behavior. A June 2008 private chiropractic note showed that the Veteran had forward flexion of 25 degrees, extension of 10 degrees, right and left lateral flexion of 10 degrees, and right and left lateral rotation of 10 degrees. She was noted to have intervertebral disc or other soft tissue lesion, which was unoperated on, with medically documented injury, pain and rigidity associated with none to minimal degenerative changes on structured tests. This chiropractor further determined that she was unable to perform the duties of her post office job due to such symptoms as lumbar instability, sacroiliac instability, myospasm, low back pain, hip pain, leg pain, scrotitis, sciatic neuralgia, trochanteric tenontitis, and myalgia. The Board notes that service connection for the Veteran’s lower extremity neurologic symptoms was denied in an April 2008 rating decision and that she has not appealed this decision. During the December 2008 Board hearing, the Veteran testified that her chronic low back disability had gotten worse. She stated that she was not able to walk and to remain stable. She also testified that she had limitation of motion in her ability to bend forward, backward, and side to side. She stated that she had an abnormal curvature in the spine and that she had to wear a brace to accommodate the abnormality. She stated that her activities were limited and that she had to use a can on a recurring basis when walking. She testified that medical professionals had instructed her to do no lifting, walking, or standing. She testified that she was not working any longer because of her back disability because she could not perform her duties at the United States Postal Service (USPS) due to her back. The Board notes that the record reflects that the Veteran worked at USPS until November 2008. A June 2010 VA examination report showed that the Veteran complained of low back pain, and that she was not currently employed as she left her job as a markup clerk at the USPS due to the excessive bending and twisting that was required. She reported flare-ups of back pain, which occurred approximately three times per week and lasted two-to-six hours. A physical examination showed forward flexion of the thoracolumbar spine to 40 degrees, extension to 10 degrees, lateral bending on the right to 25 degrees, lateral bending on the left to 30 degrees, and right and left rotation to 30 degrees. The examiner noted that range of motion was not additionally limited following repetitive-use testing and that there was no evidence of lack of range of motion that would be due to ankylosis. The examiner noted that the Veteran’s gait was altered and that she required the use of a cane to ambulate. In February 2012, the Board, in pertinent part, denied the increased rating claim for the chronic low back syndrome, which the Veteran appealed to the Court. The Court issued Orders in April 2013 and January 2014 grating a March 2013 Joint Motion for Partial Remand (Joint Motion), which vacated the Board’s February 2012 denial. In a July 2013 statement, the Veteran’s attorney contended that a September 2007 certification from the Veteran’s physician stated that during periods of chronic attacks, she was restricted to bed rest for three to five days per month, which was more than five weeks to eight weeks in a 12-month period, and which would entitle the Veteran to a disability rating of 60 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. As noted above, the certification by this medical professional in the September 2007 document considered the length and frequency of incapacitating episodes as defined by FMLA, rather than the VA definition of incapacitating episodes, and that the FMLA definition of such episodes did not require that a physician prescribe bed rest for such episodes. A February 2014 VA addendum note further showed that the Veteran complained of low back pain, which caused her to not be able to stand for longer than 10 minutes or to hardly get back up if she bent down. Treatment for her back included the use of muscle relaxant medication, nonsteroidal anti-inflammatory drugs, and a transcutaneous electrical nerve stimulation (TENS) unit. A July 2015 VA treatment record also noted that she was wearing a back brace. In a March 2016 VA physical therapy medical rehabilitation note, the Veteran was noted to have significant limitation in range of motion of lumbar flexion and extension due to fear avoidance and painful behaviors. She also had moderate limitation in right and left rotation, and moderate limitation right nad left side flexion, which was also due to fear avoidance and painful behaviors. She was assessed as having chronic lower back pain, impaired postural alignment, impaired lumbar abnormal range of motion, impaired muscle strength, impaired muscular flexibility, left radicular symptoms, and impaired functional mobility. A July 2016 VA examination report also showed that she had limited ranges of motion in the thoracolumbar spine. For example, forward flexion was limited to 25 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. However, the examiner expressly noted that the Veteran did not have ankylosis in the spine, radiculopathy, or IVDS and episodes requiring bed rest. As noted above, the Veteran’s attorney contended in an October 2017 statement that the Veteran had more than 10 incapacitating episodes during which she was immobilized and unable to perform the functions of daily living, although her doctors did not specifically prescribe bed rest. Moreover, the attorney contended that from 2006 to 2008, the Veteran experienced approximately two incapacitating episodes of back pain per month with each episode lasting five days. The attorney noted that the Veteran’s back pain became so intense that she was unable to sit, stand, or walk, and was often in so much pain she was unable to get out of bed to eat or drink water during these episodes. She stated that the only thing that helped manage her pain was to remain immobile until the pain had subsided. She reported that the pain in her back radiated down her legs, so when she was able to get out of bed, she was still unable to lift her leg high enough to step into her shower to bathe, and would have to go days without bathing. She also reported that the pain medication did not minimize her pain as much s make her drowsy so she could sleep and wait for her pain to subside. An April 2018 private vocational assessment report showed that the Veteran endorsed similar symptoms to a vocational consultant. Given this evidence, the Board determines that a disability rating in excess of 40 percent for the Veteran’s chronic low back syndrome is not warranted at any time during the appeal. Specifically, after thoroughly reviewing the claims file, including the October 2005, February 2006, October 2007, June 2010, and July 2016 VA examination reports, the Board finds that the Veteran’s back disability has not manifested with unfavorable ankylosis of the entire thoracolumbar spine or the entire spine at any time during the appeal. Specifically, although the evidence shows that the range of motion of the Veteran’s thoracolumbar spine was limited in forward flexion to less than 30 degrees, the evidence of record does not show, and the Veteran does not suggest, that she has had ankylosis in her spine, to include favorable or unfavorable ankylosis of the thoracolumbar spine. The Board has also considered the application of the Formula for Rating IVDS Based on Incapacitating Episodes to the Veteran’s symptoms, but determines that a rating under these criteria would not provide a higher benefit. Specifically, although the Veteran has asserted that she has had incapacitating episodes, which lasted more than six weeks in a 12-month period, the evidence does not establish that any such incapacitating episode was prescribed bed rest by a physician and treated by a physician. In fact, the Veteran’s attorney noted in the October 2017 statement that no medical professional has prescribed bed rest for the Veteran’s flare-ups, or periods of exacerbation of painful symptoms in the low back. Accordingly, although the Veteran has had exacerbations of her chronic low back symptoms, the evidence does not show that she has had any incapacitating episodes for VA purpose during any 12-month period. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Thus, the application of the Formula for Rating IVDS Based on Incapacitating Episodes would not provide a higher benefit for the Veteran’s disability. The Board has considered whether higher ratings should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that higher ratings are not warranted for the Veteran’s disability picture. The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported having flare-ups of her symptoms and the medical examinations showed the presence of any additional functional impairment due to such symptoms as pain, pain on repeated use, fatigue, weakness, lack of endurance, and incoordination. However, even though there is evidence of reduced forward flexion and overall range of motion of the thoracolumbar spine, and even after considering the effects of pain and functional loss, there was no ankylosis in her spine. Thus, higher ratings under these provisions are not approximated in the Veteran’s disability picture. In sum, as the preponderance of the evidence is against a disability rating in excess of 40 percent for the chronic low back syndrome, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim must be denied. See 38 C.F.R. §§ 4.3, 4.71a, DCs 5237, 5243. 2. Entitlement to a TDIU Rating Due to Service-Connected Disabilities Other Than PTSD The Veteran contended in various statements throughout the appeal, including in an April 2018 private vocational assessment report, that her service-connected disabilities, other than PTSD, prevent her from securing or maintaining substantially gainful employment. Specifically, she contends that although she is service-connected for a right wrist scar status-post removal of ganglion cyst (rated as 10 percent disabling) and uterine fibroids with menorrhagia and anemia (rated as 10 percent disabling), it is her chronic low back syndrome (rated as 40 percent disabling) that causes her to be unable to secure or follow a substantially gainful occupation. As a general matter, a TDIU rating may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In reaching a determination of entitlement to a TDIU rating, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose, 4 Vet. App. at 363. 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The record shows that in addition to the service-connected disabilities notes above, the Veteran’s PTSD has been rated as 100 percent disabling since June 6, 2005. However, as explained in the April 2017 Board remand, a grant of a 100 percent disability does not always render the issue of entitlement to a TDIU rating moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether any disabilities establish entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Thus, if a TDIU rating is warranted based solely on the Veteran’s chronic low back syndrome, right wrist scar, and uterine fibroids disabilities, without consideration of her PTSD symptoms, she may be entitled to an SMC. See 38 C.F.R. § 3.350(i). The record shows that the threshold requirements for a TDIU rating on a schedular basis are not met by the Veteran’s service-connected disabilities other than PTSD. 38 C.F.R. § 4.16(a). Nonetheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth for schedular consideration of entitlement to a TDIU. The rating board will include a full statement as to a veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award an extraschedular TDIU rating. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether the Veteran was capable of obtaining and maintaining gainful employment due to her service-connected disabilities, other than PTSD, the Board must consider the Veteran’s work history, education, and any special training. The October 2009 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) showed that the Veteran completed four years of college, and the April 2018 private vocational assessment report showed that she graduated from college with a degree in criminal justice. In the VA Form 21-8940, the Veteran noted that she worked for the USPS as a parcel clerk from April 1994 to November 2008, and that she worked 40 hours per week. She indicated that she earned $3,800.00 per month and that her highest salary in one year was $52,000.00. She stated that her PTSD and back disability caused her to be unable to follow or secure gainful employment. She further noted that her job became too stressful and she had anxiety attacks. She also asserted that she had difficulty on standing. In addition to this evidence, the record shows that the Veteran’s chronic low back syndrome impacted her ability to work at USPS prior to November 2008, as shown by various VA examination reports and by the documentation showing that she used FMLA leave in 2006 and 2007. Moreover, the claims file includes the April 2018 opinions of a private vocational expert, who determined that the Veteran’s low back disability prevented her from securing or following gainful employment. The Veteran reported to the April 2018 private vocational expert that she had approximately two incapacitating episodes of back pain per month, each lasting up to five days, from 2006 to 2008. The Veteran also reported that her service-connected disability would cause her to be absent from any job more often than would be tolerated by an employer. The vocational professional noted that the Veteran’s inability to do anything on a regular and consistent basis would be a problem in performing even a simple job. The vocational expert noted that the Veteran worked as a mark-up clerk for the postal service until 2008, and that in that position she was responsible for moving carts containing parcels and working flats. She handled up to 40 pounds on an occasional basis. The vocational expert determined that this job was performed at the medium level of physical demand. This private vocational expert opined that it is at least as likely as not that the Veteran is precluded from securing or following a substantially gainful occupation and has been unable to do so since she last worked in 2008. This vocational expert determined that there were no jobs in the local or national economies that the Veteran was able to perform and that this conclusion was reached considering her education, work history, and the pain limitations that she has as a result of her service-connected back condition. However, this vocational expert also noted that the Veteran was currently employed and that she worked three days per week, six hours per day, at the sheriff’s office. In fact, the record, including the July 2016 VA examination report for PTSD and June 2019 and July 2019 VA treatment records, show that she has been employed at the sheriff’s office since 2016 and that she was currently employed in this position. The Board has carefully reviewed the evidence of record, including the statements submitted by the Veteran, her attorney, and the April 2018 private vocational consultant, and finds that the preponderance of the evidence is against a finding that the Veteran is precluded from securing and maintaining substantially gainful employment as a result of the service-connected chronic low back syndrome, right wrist scar, and uterine fibroids, where referral for extraschedular consideration of a TDIU rating is not warranted. Although the record shows that the Veteran left her position at USPS in November 2008 at least in part due to her low back disability, the record also shows that she is not precluded from following or securing gainful employment. In fact, the record shows that she is currently employed at the sheriff’s office, which is a field of work in which she has a college degree. This affirmatively shows that the Veteran has the physical and mental abilities to perform substantially gainful employment. Although multiple medical and vocational professionals have indicated that she works part-time or three days per week, the Veteran has not asserted, and the record does not suggest, that this is marginal or protected employment. See 38 C.F.R. § 4.16(a). Accordingly, referral to the Director of Compensation Service for extraschedular consideration of a TDIU rating due to service-connected disabilities other than PTSD is not warranted as the evidence shows that the Veteran is capable of, and is currently performing, gainful employment. 38 C.F.R. § 4.16(b). Thus, for all the reasons laid out above, the Board finds the preponderance of the evidence is against a finding that that the service-connected chronic low back syndrome, right wrist scar, and uterine fibroids are of sufficient severity to preclude securing and maintaining substantially gainful employment. As the preponderance of the evidence is against granting the Veteran’s claim, the benefit of the doubt doctrine is not applicable, and referral for consideration of entitlement to a TDIU rating due to service-connected disabilities other than PTSD is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.