Citation Nr: 21062023 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-39 141 DATE: October 6, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to April 7, 2021, for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 20 percent beginning April 7, 2021, for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from January 22, 2013 to August 2, 2018. FINDINGS OF FACT 1. Prior to April 7, 2021, the Veteran's lumbar spine disability manifested in painful motion that did not significantly limit the range of motion or result in abnormal gait or abnormal spinal contour. 2. After April 7, 2021, the Veteran's lumbar spine disability did not approximate limitation to 30 degrees in forward flexion or ankylosis of the spine. 3. Throughout the appeal period, the radiculopathy of the right lower extremity manifested in mild sensory symptoms, primarily intermittent shooting pain. 4. From January 22, 2013 to August 2, 2018, the Veteran's service-connected disabilities precluded securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to April 7, 2021, for the lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.71a, DC 5242. 2. The criteria for an evaluation in excess of 20 percent beginning April 7, 2021, for the lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.71a, DC 5242. 3. The criteria for an evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.124(a), DC 8520. 4. The criteria for a TDIU from January 22, 2013 to August 2, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from April 1992 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013 and March 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2018. This case was previously before the Board in April 2018, November 2019, February 2021, and June 2021, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an evaluation in excess of 10 percent prior to April 7, 2021, and in excess of 20 percent thereafter, for a lumbar spine disability The Veteran's lumbar spine disability is currently rated as 10 percent disabling under Diagnostic Code (DC) 5242 prior to April 7, 2021, and rated as 20 percent disabling thereafter. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to IVDS. This code now requires there be disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria formula remained the same. The Board notes no changes were made to the General Rating Formula for Diseases or Injuries of the Spine or associated diagnostic codes. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating 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 disability 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 disability 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, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). Here, the Veteran's VA treatment records reflect ongoing low back pain primarily in the early part of the appeal period. In June 2012, he sought walk-in care for low back pain that radiated down to his buttocks, reporting that the pain was a 3 or 4 on a scale of 10, but can go up to a 7. He declined medication but obtained a TENS unit and a heating pad. In April 2012, he reported to his VA primary care provider that his back pain was better because he was less active. He reported occasional shooting pain from his back into the back of his right leg. In February 2013, the Veteran attended a VA spine examination, at which he reported that, during flare-ups, he was unable to walk or remain stationary, and that sitting for even a few minutes was painful. He reported that he walked hunched over and asymmetrically, and that he felt breathing was made difficult by his back pain during flare-ups. The Veteran did not report how frequently he experienced flare-ups, and reported that his back was "fine now" and does not cause pain as long as he does not work. The range of motion of the thoracolumbar spine was measured to be all normal: 90 degrees in flexion; 30 degrees in extension; 30 degrees in left and right lateral flexion; and 30 degrees in left and right lateral rotation. There was no objective evidence of painful motion noted on the examination. After three repetitions, the range of motion remained the same, and there was no functional loss noted. There was no pain on palpation, guarding, or muscle spasm noted on the examination, and muscle strength and reflex testing were all normal. IVDS was not diagnosed. There was no indication of radiculopathy, and the Veteran's gait and posture were within normal limits. X-ray imaging revealed minor degenerative spurs involving the L4 and L5 vertebrae. In July 2013, the Veteran again reported to his VA primary care provider that his back pain was better because he was less active, and noted that he was using fewer medications on an as-needed basis for his back. In November 2013, a VA mental health care provider noted that the Veteran's gait was stable but his pace was slow due to his back pain. In March 2014, the Veteran attended another VA examination, at which he reported that he was limited in prolonged sitting and standing, bending, and lifting during flare-ups. The Veteran did not describe how frequently flare-ups occur or how long they last. The range of motion of the thoracolumbar spine was measured to be 65 degrees in flexion, with painful motion beginning at 60 degrees; 20 degrees in extension; 25 degrees in left and right lateral flexion; and 25 degrees in left and right lateral rotation, with painful motion beginning at 20 degrees bilaterally. After three repetitions, the range of motion remained the same. The examiner noted excess fatigability, pain on movement, and interference with sitting, standing, and/or weightbearing as contributing to functional loss of the lumbar spine. The examiner noted pain on palpation of the lower back, but no guarding or muscle spasm. Muscle strength and reflex testing were all normal. The examiner noted moderate intermittent radicular pain to the right lower extremity. IVDS was not diagnosed, and the Veteran's gait and posture were within normal limits. Also in March 2014, the Veteran reported to his VA primary care provider that he occasionally experienced shooting pain from his lower back into the back of his right leg. He reported that the back pain had generally improved to more of an intermittent problem, and that he was using less of his as-needed medication. He reported that he was looking for work, but that work would cause more back pain. An October 2014 report to his VA primary care provider reflected similar symptoms. In November 2014, the Veteran reported an episode of increased back pain for three days, with difficulty standing and walking on the first day and pain shooting down his right leg from his lower back. He reported that the pain was better during the day and worse at night. He was advised to stretch, use heat, the TENS unit, and prescription medication as needed, and to walk and be as active as possible. In January 2015, the Veteran reported increased back pain to his VA mental health provider. In February 2015, the Veteran sought treatment for another episode of increased back pain, which he described as shooting pains from his left hip down his left leg for the prior week. He was advised to continue stretching and treating his back with heat and cold therapy, and attended physical therapy once a week for six weeks. At the initial physical therapy consult, the Veteran rated his low back pain as a 5 or 6 out of 10; on the second week, he rated it a 2 or 3; on the fifth week, he rated it a 1. In June and December 2017, the Veteran reported to his VA primary care provider that, after the back pain flare-up in February 2015 and the benefit he received from the physical therapy, his back pain had been better throughout 2016 and stable in 2017. He reported that he was not using much medication for the back pain. A June 2018 VA primary care note reflected a similar disability picture. In January 2018, the Veteran testified at the Board hearing that flare-ups of his lumbar spine disability consist of pain radiating from his low back to his right knee. In August 2018, the Veteran attended another VA spine examination, at which he reported difficulty lifting and doing repetitive work. The Veteran also reported that he cannot sit for longer than 20 or 30 minutes without needing to stand up, and that he needed special seats in his car in order to be comfortable enough to drive. He reported flare-ups twice a month, lasting a couple of hours each, where he experiences stabbing pains that radiate into his legs, usually the right leg. He reported that, during flare-ups, walking takes effort and breathing hurts. The initial range of motion of the thoracolumbar spine was measured to be all normal: 90 degrees in flexion; 30 degrees in extension; 30 degrees in left and right lateral flexion; and 30 degrees in left and right lateral rotation. Pain was noted in forward flexion, but did not result in or cause functional loss. After three repetitions, the range of motion remained the same. There was no pain on palpation, guarding or muscle spasm. Muscle strength and reflex testing were all normal. The examiner noted no signs of radiculopathy, and IVDS was not diagnosed. The Board notes that it previously found the July 2019 addendum to this examination inadequate, as it failed to address functional limitation during flare-ups using lay evidence elicited from the Veteran at the August 2018 examination and in the record. Therefore, the Board will only consider clinical evidence from this examination related to other aspects of the disability. In July 2020, the Veteran was afforded another VA examination, at which he reported no change in his back since the August 2018 examination, as he no longer works or does anything to irritate his back. He also reported not having seen his doctor regarding his lumbar spine disability in the previous two years. The Veteran reported that, rather than sit to watch television, he lies down with his feet elevated to avoid aggravating his back. He reported that his back pain was a 2 out of 10, and described it as tightness. The initial range of motion of the thoracolumbar spine was measured to be 85 degrees in flexion; 30 degrees in extension; and 25 degrees in left and right lateral flexion and rotation. Pain was not noted on the examination, and there was no change in the range of motion after three repetitions. No muscle spasm or guarding was identified, and IVDS was not diagnosed. The Board notes that this examination was also found to be inadequate as to flare-ups, and will only consider evidence reported in this examination regarding other aspects of the lumbar spine disability. The Veteran attended a VA examination on April 7, 2021, at which he reported that he limited his movements and his posture to avoid hurting his back. He reported daily, mild to moderate flare-ups precipitated by lifting, moving a lot, and twisting. The Veteran reported interference with sitting and standing for periods longer than 20 or 30 minutes. The initial range of motion of the thoracolumbar spine was measured to be 60 degrees in flexion; 20 degrees in extension; 30 degrees in left and right lateral flexion; and 20 degrees in left and right lateral rotation. Pain was noted in all ranges of motion, with no additional loss of motion after three repetitions. The examiner identified a diagnosis of IVDS, but the Veteran had not experienced symptoms requiring physician-prescribed bedrest in the prior 12 months. The Board previously found this examination to be inadequate as to the range of motion in right and left lateral flexion and to the examiner's opinion regarding repeated use over time, as it did not provide any explanation for how the reported findings indicating improvement applied to the Veteran's particular circumstances. The Board will therefore only consider the evidence in this examination report relevant to other aspects of the lumbar spine disability. In June 2021, the Veteran attended another VA examination, at which he reported improvement in his back since he stopped working. He described his back pain as a 1 or 2 out of 10, a dull ache that he experiences daily. The Veteran reported that his lumbar spine disability does not interfere with his day-to-day activities. He did not report any flare-ups. The initial range of motion of the thoracolumbar spine was measured to be all normal. Pain was not noted on the range of motion testing, though there was pain in the midline lumbar area upon palpation. There was no loss of range of motion after three repetitions, and the examiner estimated no loss after repeated use. IVDS was again identified, though there were no episodes of acute symptoms requiring physician-prescribed bedrest in the prior 12 months. The Board notes that, while the Veteran reported having been treated by a chiropractor, this private treatment occurred before the period on appeal. There are no relevant private treatment records associated with the claims file during the period on appeal. After careful review of the evidence, the Board finds that an increased evaluation is not warranted for the Veteran's lumbar spine disability. To begin with, prior to April 7, 2021, two of the four VA examinations the Veteran was afforded noted the lumbar spine had a full range of motion. The March 2014 examination noted forward flexion to 65 degrees and a combined range of motion of 185 degrees, while the July 2020 examination noted forward flexion to 85 degrees and a combined range of motion of 215 degrees. These more limited ranges of motion are consistent with a 10 percent evaluation under the criteria, which is assigned where forward flexion is greater than 60 degrees but not greater than 85 degrees, or where the combined range of motion is greater than 120 degrees but not greater than 235 degrees. Further, none of these four examiners noted muscle spasm or guarding, and the Veteran's VA treatment records do not show any notation of muscle spasm or guarding, nor of abnormal gait or spinal contour. Although the Veteran reported at the February 2013 examination that he held his spine asymmetrically during flare-ups, there is no clinical documentation of this symptom or other similar report from the Veteran, either in a written statement, testimony to VA, or to his treating physicians in June 2012, April 2012, July 2013, and March 2014. There is also no indication in the record how frequently or for how long the Veteran adjusted his posture in this manner to avoid pain. Based on these factors, the Board finds that this report is not indicative of the Veteran's total disability picture regarding his lumbar spine, and an increased rating based on abnormal gait or spinal contour is not warranted. Next, regarding functional loss prior to April 7, 2021, there is ample evidence of painful motion in the record for consideration of sections 4.40 and 4.45 of the regulations. However, pain itself is not considered functional loss, Mitchell, 25 Vet. App. at 37-38, and the evidence of record prior to April 7, 2021, does not indicate that the painful motion results in functional loss beyond that which is noted in the March 2014 examination, which presented the most restricted range of motion. Throughout the record, the Veteran reported difficulty sitting for prolonged periods before needing to stand and stretch, and needing to move carefully or sit with his feet elevated in order to avoid aggravating his low back. He also consistently reported that, during flare-ups, he experiences sharp pains radiating from his low back down his right leg; however, this symptom is compensated for under the Veteran's 10 percent rating for radiculopathy. In November 2014 and February 2015, the Veteran sought treatment for flare-ups of increased back pain, which were treated conservatively and successfully with heat and cold therapy, the use of a TENS unit, and, in the second instance, physical therapy. The Board finds that the pain associated with the Veteran's lumbar spine disability prior to April 7, 2021, does not cause functional loss equivalent to the criteria for a 20 percent, or higher, evaluation, either consistently or during flare-ups, as there is no evidence in the record that the pain limits the Veteran's range of motion significantly more than the most limited range of motion recorded at the March 2014 VA examination. Rather, the evidence indicates the Veteran limits his activities and adjusts his posture during flare-ups in order to avoid pain, but that he is capable of bending, walking, standing, and sitting both regularly and during flare-ups. For these reasons, the Board finds that a 10 percent evaluation prior to April 7, 2021, is appropriate. Beginning April 7, 2021, the Veteran is in receipt of a 20 percent evaluation, and the Board finds that no greater evaluation is warranted. There are two VA examinations in the record during this period, the first reporting a range of motion limited to 60 degrees in forward flexion and the more recent reporting a full range of motion. The next higher evaluation for a lumbar disability is described by flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence of record for the period beginning April 7, 2021, does not reflect ankylosis of the entire thoracolumbar spine and, at worst, reflects 60 degrees in forward flexion. Therefore, an increased evaluation based solely on the rating criteria is not warranted. Considering functional loss, the Board finds the Veteran's lumbar spine disability during this later period does not approximate the criteria for evaluations greater than 20 percent. The Veteran described mild to moderate flare-ups of his low back pain, as well as a dull ache that he experiences daily. He was able to bend forward at least to 60 degrees, and he did not describe any flare-ups involving immobility in his back. The lumbar spine disability therefore does not approximate ankylosis, either favorable or unfavorable, of any part of the spine. The evidence also does not reflect a disability picture approximating limitation to 30 degrees in forward flexion; rather, the Veteran described general improvement in his low back. At the April 2021 examination, he noted being limited by his low back in sitting or standing longer than 20 or 30 minutes, but did not deny being able to attain or hold either of these postures, and at the June 2021 examination, he denied that the low back disability interfered with his day-to-day activities at all. Therefore, the Board finds the evidence does not reflect functional limitation by the lumbar spine disability approximating criteria for an evaluation greater than 20 percent. For these reasons, the Board concludes that increased ratings are not warranted, and that no greater than a 10 percent evaluation prior to April 7, 2021, and a 20 percent evaluation thereafter is appropriate. 2. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity The Veteran's radiculopathy of the right lower extremity is currently evaluated as 10 percent disabling effective March 20, 2014, under Diagnostic Code 8520, which governs paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a), DC 8520. Diagnostic Code 8520 provides that 10, 20, 40, and 60 percent ratings are assigned depending on whether incomplete paralysis of the nerve is mild, moderate, moderately severe, or severe with marked muscular atrophy, respectively. Complete paralysis of the nerve, in that the foot dangles and drops, there is no active movement of the muscles below the knee possible, or flexion of the knee is weakened or lost, warrants an 80 percent rating. 38 C.F.R. § 4.124(a), DC 8520. An introductory note to the rating schedule for diseases of the peripheral nerves indicates that where the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. The words "mild," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As noted above, the Veteran complained throughout the appeal period of flare-ups involving sharp pains shooting from his low back down the back of his right leg. In June 2012, November 2014, and February 2015, the Veteran sought treatment for episodes of increased back pain with these shooting pains. The Veteran reported the shooting pain was on a level of up to 7 out of 10, but denied other symptoms such as bowel or bladder incontinence associated with the radiculopathy. In March 2014, a VA examiner noted moderate intermittent radicular pain to the right lower extremity, though the examiner did not record any specific description of the radicular pain. The muscle strength, reflex, and sensory examinations were all normal, and the straight leg raising test was negative, indicating the pain did not radiate below the knee. The examiner found no other signs or symptoms of radiculopathy and no other neurologic abnormalities. At the August 2018 VA examination, the Veteran reported that he felt the stabbing pains radiating into his legs, usually the right leg, approximately twice a month, lasting a couple of hours. At the July 2020 VA examination, the Veteran reported burning sensation and an occasional stabbing pain down his right leg. The examiner noted mild intermittent pain and numbness in the right lower extremity. Muscle strength, reflexes, and sensory testing was all normal, and the examiner characterized the radiculopathy as mild incomplete paralysis of the right sciatic nerve. At the April 2021 VA examination, the Veteran reported mild numbness in the right lower extremity. Muscle strength, reflexes, and sensation to light touch was all noted to be normal. The examiner noted mild incomplete paralysis of the sciatic nerve. The Board notes it previously found the August 2018, July 2020, and April 2021 examinations inadequate as to particular findings related to the lumbar spine disability, but it will consider the findings related to radiculopathy, as these were properly reported. At the June 2021 VA examination, the Veteran reported a shooting pain down his right leg a few times a month. He also reported having physical therapy for right leg sciatica approximately three years prior, which helped improve his symptoms. The muscle strength and reflex examinations all normal, and the straight leg raising test was negative. The examiner noted mild intermittent pain in the right lower extremity. Upon review of the evidence of record, the Board finds that an increased evaluation for radiculopathy is not warranted in this case. The Veteran consistently reports occasional pains shooting down his right leg to the back of his knee from his lower back. According to his reports at the August 2018 and June 2021 VA examinations, these pains occur a couple or few times a month. Although the March 2014 VA examiner noted moderate severity of radiculopathy, there are no lay statements from the Veteran or rationale from the examiner to support this conclusion. The Board notes the relative infrequency and short duration of the shooting pain described elsewhere in the record throughout the appeal period. Taking those factors into consideration, as well as the fact that the pain does not result in weakness or loss of reflex or sensation, the Board finds that the radiculopathy of the right lower extremity has been mild in severity throughout the appeal period, and that a 10 percent evaluation is proper. TDIU 3. Entitlement to a TDIU prior to August 3, 2018 VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). Although the RO asserted the Veteran does not meet the schedular requirements, the Veteran is in receipt of a combined rating of at least 70 percent since January 22, 2013, with one disability (major depression) rated as 70 percent disabling. In September 2020, the Veteran submitted an updated VA Form 21-8940, detailing his work history throughout the period on appeal. He reported working 15 hours per week from 2014 to 2020, and prior to that, having last worked in 2007. The Veteran reported working for a friend at a restaurant doing delivery, odd jobs, and auto mechanic jobs, earning at most $500 in a month. The Veteran also reported donating plasma on a regular basis for supplemental income. He indicated having completed three years of college and beginning, but not completing, two different vocational training programs in aeronautics. The Veteran's VA treatment records similarly reflect reports of unemployment through January 2014, and later reports of working delivering Chinese food. As the record reflects only part-time work doing odd jobs for a friend, up to 15 hours a week, earning $500 in a month, the Board finds that this work was marginal employment. Therefore, the question before the Board is whether the Veteran's service-connected disabilities prohibited him from securing and following substantially gainful employment prior to August 3, 2018. During this period, the Veteran is service connected for major depression, a lumbar spine disability, and radiculopathy of the right leg. As discussed in depth above, the lumbar spine disability and radiculopathy during this period were productive of pain that flared up when aggravated, making it difficult to walk, stand, or sit for long periods of time. As for the Veteran's service-connected depression, the record reflects symptoms throughout the period on appeal including social isolation; feelings of hopelessness; lack of energy; sleep impairment; mild memory loss; and occasional passive suicidal ideation. At the Board hearing, the Veteran testified about having difficulty interacting with people, giving an example of manning the cash register in a grocery store, a job which he held prior to the period on appeal. In December 2017, the Veteran's VA psychologist noted "significant work conflict" in his Axis I assessment. In August 2019, the Veteran submitted a letter from his VA psychologist, who opined that the Veteran was functionally unable to obtain and maintain substantial gainful employment since 2007. The psychologist based this conclusion on the Veteran's continual treatment for depression, prior documentation of suicidal ideation, and inability to keep a job since 2007. After resolving any benefit of reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities preclude substantially gainful occupation from January 22, 2013 to August 2, 2018. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.