Citation Nr: 21004151 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-27 964A DATE: January 26, 2021 ORDER Entitlement to an initial rating of 20 percent, but no more, for a low back disability, diagnosed as degenerative disc disease and arthritis (a low back disability) prior to February 19, 2020 is granted. Entitlement to a rating in excess of 40 percent for a low back disability from February 19, 2020 is denied. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from February 17, 2016 is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy from February 17, 2016 is denied. Entitlement to an initial rating in excess of 10 percent for bronchial asthma prior to February 19, 2020, is denied. Entitlement to an initial rating in excess of 30 percent for bronchial asthma since February 19, 2020, is denied. Entitlement to an initial rating in excess of 10 percent for mal debarquement syndrome (MDS) is denied. FINDINGS OF FACT 1. Prior to February 19, 2020, the Veteran’s low back disability was characterized by pain and limitation of forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees; limitation of motion to 30 degrees or less, and IVDS were not shown. 2. From February 19, 2020, the Veteran’s low back disability was characterized by pain and limitation of motion to 30 degrees or less; ankylosis of the back and IVDS were not shown. 3. From February 17, 2016, the Veteran’s right and left lower extremity radiculopathy were each characterized by mild symptoms; moderate symptoms were not shown. 4. Prior to February 19, 2020, the Veteran’s asthma was characterized by FEV-1 of and FEV-1/FVC of 71-80 percent predicted with intermittent oral bronchodilator therapy; FEV-1 of 56- to 70-percent predicted, FEV-1/FVC of 56 to 70 percent, daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication were not shown. 5. From February 19, 2020, the Veteran’s asthma was characterized by FEV-1/FVC of 70 percent. 6. During the period on appeal, the Veteran’s MDS was characterized by at least intermittent dizziness; staggering was not shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no more, for a low back disability, diagnosed as degenerative disc disease and arthritis (a low back disability) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, DC 5242. 3. The criteria for Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71, 4.124, 4.124a, DC 8520. 4. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71, 4.124, 4.124a, DC 8520. 5. The criteria for an initial rating in excess of 10 percent for bronchial asthma prior to February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.10, 4.97, Diagnostic Code 6602 6. The criteria for an initial rating in excess of 30 percent for bronchial asthma prior since February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.10, 4.97, Diagnostic Code 6602 7. The criteria for an initial rating in excess of 10 percent for MDS (claimed as vertigo) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from July 1986 to July 2011. This appeal was remanded by the Board in January 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in June 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Increased Ratings The Veteran is service connected for a low back disability, bronchial asthma, and MDB. He sought service connection for these disabilities prior to separation and it was granted effective August 1, 2011, the first day after the month of his separation. The Veteran was granted increased ratings in an August 2020 Rating Decision, from February 19, 2020, the date entitlement to these ratings was shown. He seeks higher ratings for each stage on appeal. The Veteran complains of severe back pain, with little to no relief from shock treatments or physical therapy. The Board grants a rating of 20 percent, but no more, prior to February 19, 2020 for the Veteran’s low back disorder. However, higher ratings for the remaining periods for asthma and MDB are not warranted. Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. For musculoskeletal disabilities, a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4. 10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. 1. Low Back Disability The Veteran is currently rated 10 percent for the period prior to February 19, 2020, and 40 percent from that date, for a low back disorder. The Board finds that an initial rating of 20 percent, but no higher, prior to February 19, 2020 is warranted. As to the second stage of this period, the Board finds that a rating in excess of 40 percent is not warranted. Prior to February 19, 2020 38 C.F.R. § 4.71a, DC 5242 applies a general rating that is applicable for most spine disabilities. Under this rating formula, a 20 percent rating is warranted when the evidence shows: • Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • Combined range of motion of the thoracolumbar spine not greater than 120 degrees; • Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; or • Intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5242. A 40 percent rating is warranted when the evidence shows: • Forward flexion of the thoracolumbar spine to 30 degrees or less; or • Favorable ankylosis of the entire thoracolumbar spine; or • Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 50 percent rating is warranted when the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. Id. Ankylosis is the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The term “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 combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243, Note 2. Additionally, 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.” 38 C.F.R. § 4.71a, DCs 5237, 5243, Note 1. Based on the evidence of record, a rating of 20 percent, but no more, is warranted prior to February 19, 2020. Specifically, several records refer to measured “trunk flexion” (another name for forward flexion) between 30 and 60 degrees. At his May 2011 C&P examination, the Veteran had constant low level back pain, exacerbated by lifting. His forward flexion was measured at 70 degrees, although the effects of pain, weakness, incoordination, or other measures of functional impairment were not assessed. In October 2012, the Veteran complained of worsening sharp and constant low back pain. The pain was mitigated by rest, hot water bottle, and medications. At a December 2012 VA PT consult, the Veteran complained of pain and core weakness. His trunk flexion was measured at 47 degrees, placing it squarely within the range for a 20 percent rating. The Veteran reported increased pain in February 2013 following shoveling snow. VA consults dated January 2013 (48 degrees), February 2013 (52 degrees), January 2014 (62 degrees), March 2015 (49 degrees), and April 2015 (36 degrees) recorded flexion between 30 and 60 degrees as well, or at least very close to 60 degrees. A February 2016 note indicated that back pain was caused by movement, standing, sitting, and exercise. The Veteran has demonstrated pain increased by physical activity throughout this period. However, this pain did not cause functional impairment impairing range of motion to 30 degrees. Specifically, a January 2014 record mentions intermittent sharp pain of variable intensity. The pain was initiated by prolonged positions, increased physical activity, and jarring. Similarly, in a February 2016 non-VA record, the Veteran had pain at 9/10 pain and two falls in the previous year. He had a slow, ginger gait, and was using cane. The examiner noted the Veteran was too tired to try a heel walk. SLR test and Patrick’s maneuver caused the Veteran back pain, and he had some decreased sensation in the right S1 nerve. The Veteran’s muscle strength was hard to determine due to not putting full effort due to fear of pain or fatigue. However, the examiner did notice the Veteran moving quickly to put on his socks and shoes after the examination. The Veteran endorsed sharp, throbbing pain throughout this period, of intensity varying from 6 to 10 out of 10. The functional limitations imposed by these restrictions include sleep impairment and restrictions on leisure activity and exercise. The Board also notes the Veteran’s apparent complaints of flare-ups during which pain increased. An August 2014 statement from the Veteran’s spouse mentions flareups of low back pain and tingling in the legs when the Veteran does normal household chores. Unfortunately, however, the precise extent to which these flare-ups cause additional loss in range of motion was not recorded. In any event, based on the observed ranges of motion and the Veteran’s statements, it does not appear that the next higher rating is for contemplation, even in such situations. Accordingly, the evidence does not warrant the next higher 40 percent rating for a low back disability. In considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the Veteran’s pre-February 2020 difficulty lifting, standing, sitting, bending, abnormal gait, episodes of pain lasting 2-3 days relieved only by lying in fetal position, and occasional falls, are compensated by his current ratings. Further, the additional functional loss caused by the musculoskeletal pain is accounted for in his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Put another way, the Veteran’s complaints are adequately contemplated in the ratings he currently receives. In sum, the findings are most commensurate with a 20 percent rating.   From February 19, 2020 Next, the Board finds that a rating for a lower back disorder in excess of 40 percent since February 19, 2020, is not warranted. To obtain a rating in excess of 40 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. However, the Veteran exhibited a small, but measurable range of motion during his February 2020 VA examination. His muscle strength was diminished slightly, to 4/5. Additionally, his examiner found that no ankylosis existed. As he exhibited a measurable range of motion and no ankylosis, the Veteran cannot be considered for a rating based on ankylosis. Therefore, the Board concludes that a rating in excess of 40 percent is not warranted during this time period. The Board is aware of the Veteran’s occupational limitations for this period, such as decreased mobility and limited activities during flareups. Despite the severity of these functional limitations, they are adequately addressed by the Veteran’s current rating for this period. Further, while the Veteran was noted to have intervertebral disc syndrome (IVDS) in his most recent C&P examination report, he was not prescribed bedrest during the period on appeal. Accordingly, the Board concludes that a rating in excess of 40 percent is not warranted for the Veteran’s lumbosacral spine disability for the period from February 19, 2020. Without a finding of ankylosis, this is the highest schedular rating for this disability. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from February 17, 2016 3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy from February 17, 2016 When evaluating the extent of a Veteran’s spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, and neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71 (a), Note 1. Here, the Veteran is presently in receipt of 10 percent disability ratings from February 17, 2016 for neurological symptoms in his right and left lower extremities under 38 C.F.R. § 4.124a, DC 8520, addressing neuritis of the sciatic nerve. The Board feels that this is the most appropriate diagnostic code. Under this diagnostic code, a 20 percent rating is warranted when the radiculopathy is “moderate” in nature. In the Board’s view, the Veteran’s radiculopathy in either lower extremity is manifested as “mild” and has not been “moderate” during this period. Pain from the L5-S1 (sciatic) nerve root was first noted in a February 2016 note. In a June 2016 note, the Veteran complained of low back pain which radiated to either side. He noted tingling 3-4 times a week, with flashes of pain along the right lateral thigh to the calf and foot. The Veteran’s February 2020 C&P examiner diagnosed the Veteran with mild bilateral leg radiculopathy with severe bilateral: intermittent pain; severe paresthesias and/or dysesthesias; moderate numbness; and no other signs of radiculopathy. The Veteran’s peripheral nerve reflex in his knees and ankles was normal (2+), he had normal muscle function, and normal sensitivity to light touch. Accordingly, a June 2020 rating decision awarded the Veteran 10 percent ratings for radiculopathy in both legs. Other neurological symptoms, to include bowel and/or bladder impairment, have not been shown or asserted. Accordingly, 10 percent ratings are warranted for the Veteran’s left and right leg radiculopathy from February 17, 2016. For the foregoing reasons, a rating in excess of 10 percent rating prior to February 19, 2020, and in excess of a 40 percent rating from that date, is not warranted for the Veteran’s lumbar spine disability. Ratings in excess of 10 percent for right and left leg radiculopathy from February 17, 2016 are not warranted. 4. Bronchial asthma Service connection for asthma was granted in an April 2012 Rating Decision.  In this decision, the AOJ assigned a 10 percent rating effective August 1, 2011, pursuant to 38 C.F.R. § 4.71a, DC 6602. In a June 2020 Rating Decision, the AOJ increased this rating to 30 percent effective February 19, 2020. The Veteran claimed entitlement to an increased rating for both periods in a November 2020 Appellate Brief. The Veteran’s respiratory disability is rated under Diagnostic Code 6602, which compensates for bronchial asthma.  The Board finds that this DC is appropriate to rate the Veteran’s symptoms.  This DC measures lung function using ratios called Forced Expiratory Volume and FEV-1/FVC.  Generally, higher percentages correspond to better lung function.  Under the applicable diagnostic criteria, compensable ratings are warranted upon a showing of:  • FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy (10 percent).   • FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication (30 percent);  • FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroid (60 percent);  • FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications (100 percent).  38 C.F.R. § 4.97, Diagnostic Code (DC) 6602.  PFTs should be used even when not consistent with clinical findings, unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3)(4).  When evaluating based on PFT’s, post-bronchodilator results should be used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or pre-bronchodilator results are normal, or when the examiner determines that post-bronchodilator studies should not be done and states why. In those cases, pre- bronchodilator values should be used for rating purposes. 38 C.F.R. § 4.96(d)(3)(4)(5).  Turning to the evidence of record, the Veteran’s symptoms do not merit a rating in excess of 10 percent prior to February 19, 2020, or in excess of 30 percent from that date.  Prior to February 19, 2020 Prior to February 19, 2020, the Veteran is in receipt of a 10 percent rating under DC 6602. The evidence does not warrant a higher rating. Specifically, a June 2011 note mentions a prescription for albuterol (a bronchodilator) for nocturnal wheezing. However, it was prescribed for use as needed, and was not used daily. Further, the evidence does not mention inhalational anti-inflammatory medication for asthma. Moreover, the Veteran’s PFT examination yielded FEV-1 70% predicted, FVC 61% predicted, FEV1/FVC 114% predicted. FEV1 96% post bronchodilator. These readings are consistent with an August 2012 VR&E record indicates that the asthma “came and went” and was not a regular occurrence. In disagreement with his initial rating, the Veteran pointed to his 12 month prescription for albuterol, which he used several times per week, usually when lying in bed. He also reported needing a nebulizer at home, and that his insurance was not adequate to cover these treatments. The Veteran also reported several ER visits for asthma in a February 2013 record, with wheezing and productive cough, requiring him to use more than the prescribed doses of albuterol. In the summer of 2014, the Veteran used his inhaler 12 times. This evidence actually shows the Veteran’s entitlement to a 10 percent rating and no higher; his inhalational therapy was not used on a daily basis and his most reliable post-bronchodilator PFT results were higher than 70 percent. Accordingly, a rating higher than 10 percent is not warranted prior to February 19, 2020. From February 19, 2020 At his February 2020 C&P examination, the Veteran complained of shortness of breath with strenuous exercise or routine outdoor tasks. The Veteran was unable to complete the post bronchodilator test, as the pre-bronchodilator test was very strenuous on him. The best result the Veteran was able to record was FEV-1/FVC: 70 percent. Based on this result, the RO awarded the Veteran a 30 percent rating. A higher rating than 30 percent is not warranted. First, the Veteran’s February 2020 C&P examiner observed that physician care of exacerbations was not required during this period. Moreover, the P examiner noted that the Veteran did not require any courses of oral or parenteral corticosteroids in the previous 12 months, let alone of the three courses required for a higher rating. Given these results, a higher rating is not warranted for asthma for either period on appeal. 5. MDS (claimed as vertigo) The Veteran seeks an increased rating for his service-connected MDB, currently rated as 10 percent disabling. The Veteran’s MDB is rated under 38 C.F.R. § 4.87, Diagnostic Code 6204, which relates to peripheral vestibular disorders. Under Diagnostic Code 6204, a 10 percent rating is assigned when there is occasional dizziness. A 30 percent is assigned when there is dizziness and occasional staggering. Based on the evidence of record, the Board finds that an increased rating for vertigo is not warranted during this period. Specifically, during his April 2011 VA examination, the Veteran reported occasionally feeling unsteady. The following June, a non-VA examiner noted that the Veteran could march in place on a foam board with his eyes open as well as closed. He complained of a sensation of movement while standing, but not with physical activity. In September 2012 he complained of worsening dizzy spells. In December 2012 imbalance due to mal de debarquement syndrome was noted, particularly when standing still. Next, in an August 2014 statement, the Veteran noted dizzy spells several times a week where he stumbles and grabs a stationary object to prevent himself from falling. While dizziness is noted, none of these records refer to walking or moving unsteadily. Accordingly, a higher 30 percent rating prior to February 19, 2020 is not warranted. The Veteran is in receipt of a 30 percent rating for MDB, the schedular maximum for vestibular disorders, from February 19, 2020. Specifically, at his February 2020 C&P examination, the Veteran complained of instability, loss of balance, and feeling of continuous movement or rocking back and forth while standing stationary. During dizzy spells, the Veteran must sit down and wait for the attack to pass The Romberg test was not indicated (meaning the doctor opined that it was not necessary) and the Veteran exhibited a normal gait. Nonetheless, the Veteran competently and credibly reported that his MDB can affect his balance. Therefore, his rating of 30 percent is warranted. This is the schedular maximum for vestibular disorders. In considering the appropriate disability ratings, the Board has considered the Veteran’s statements that his disabilities are worse than the ratings he currently receives. Specifically, the Veteran needs help putting on shoes, socks, and pants. He also has dizziness spells several times a week where he stumbles and has to grab onto a stationary object to regain balance. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination and treatment reports) directly address the criteria under which this disability is evaluated. Next, in considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, he does not allege, nor does the record reflect, that his back disability, asthma, or MDB caused “marked interference” with employment. To the extent that they may have, the Board concludes that any loss in income was able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration. The Veteran does not contend, and the evidence does not show, that his service-connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran has had periods of unemployment due to his back. For instance, he left his job at a winery in 2016 because could not lift cases due to back injury. However, the medical evidence does not indicate, nor does the Veteran contend, that his service-connected disabilities can render him incapable of any employment. Accordingly, consideration for a TDIU rating is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia