Citation Nr: 21066483 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-43 228 DATE: November 1, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected degenerative joint disease (DJD) with trapezius and levator muscle strain (shoulder disability) is denied. Entitlement to an evaluation in excess of 10 percent prior to October 26, 2020, and 30 percent thereafter for service-connected cervical stenosis with strain (neck disability) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's shoulder disability is not manifest by limitation of motion of the major extremity at midway between the side and shoulder level. 2. Prior to October 26, 2020, the Veteran's neck disability is not manifest by forward flexion 30 degrees or less, or a combined range of motion 170 degrees or less. 3. From October 26, 2020, the Veteran's neck disability is not manifest by ankylosis. 4. The Veteran's service-connected disabilities did not render the Veteran unemployable prior to September 26, 2013. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the service-connected shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010-5201. 2. The criteria for entitlement to an evaluation in excess of 10 percent prior to October 26, 2020, and 30 percent thereafter for service-connected neck disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5201. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2008 to September 2011. This case comes before the Board on appeal from a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). These issues were previously before the Board in March 2019 when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, an evaluation of 30 percent from October 26, 2020 for the service-connected neck disability and an evaluation of 20 percent from September 14, 2011 for the service-connected shoulder disability were granted in a November 2020 rating decision. As this is not a full grant of the benefits sought, these issues remain on appeal. Additionally, the March 2019 Board decision remanded in part for the issuance of a Statement of the Case (SOC) for the issues of an increased rating and earlier effective date for the service-connected posttraumatic stress disorder (PTSD), and an increased rating for service-connected posttraumatic headaches. When a timely Notice of Disagreement (NOD) has been received, but no SOC has been issued, the Board may take jurisdiction over the issues appealed therein and remand them so that a SOC may be issued. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238 (1999). In April 2020 the RO issued an SOC for these claims; however, the Veteran did not timely file a substantive appeal. As the Veteran has not indicated any attempt to prosecute the appeal, the Board will not further address these matters. Finally, the Board notes that the Veteran's prior representative filed a motion for withdrawal, citing factors which make the continuation of representation impossible, impractical, or unethical. In October 2018, the Board found that the motion to withdraw representation meets the criteria set forth in 38 C.F.R. § 20.608. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran filed for service connection for these claims shortly after separation from service in September 2011. 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 enervation, 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. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints 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. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 1. Entitlement to an evaluation in excess of 20 percent for service-connected shoulder disability The Veteran's service-connected shoulder disability is rated under DC 5010-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). Here, the DJD of the right shoulder (DC 5010) is rated as limitation of motion of the arm (DC 5201). 38 C.F.R. § 4.71a, DC 5201. The Board notes that, the rating criteria for evaluating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5201, were amended during the pendency of the appeal effective February 7, 2021. Prior to the regulatory change, DC 5201 assigned a 20 percent rating for limitation of motion of the major arm at shoulder level. To warrant a 30 percent rating, the evidence needed to demonstrate limitation of motion of the major arm midway between side and shoulder level. 38 C.F.R. § 4.71a, DC 5201 (2020). The regulatory change amended the DC 5201 only to the extent that it defined "shoulder level" as flexion and/or abduction limited to 90 degrees, and "midway between the side and shoulder level" as flexion and/or abduction limited to 45 degrees. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The Veteran is right-hand dominant, and the evaluations above are assigned based on the major extremity. Regarding the use of the earlier and current criteria for evaluating the Veteran's chronic low back pain, the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Thus, the Board will evaluate this claim under both versions of the regulation and apply whichever is more favorable. Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Board also notes that 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Prior to May 23, 2016, it was longstanding VA policy to interpret the minimum compensable rating for a joint as a 10 percent rating, irrespective of the DC involved. In Sowers v. McDonald, 27 Vet. App. 472 (2016), however, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 is limited by the specific DC most applicable to the claimant's disability. In this case, the minimum compensable evaluation available under DC 5201 is 20 percent. Based on the following, the Board does not find that a higher evaluation is warranted at any point during the appeal under either the new or old regulations. Just prior to separation from service, the Veteran sought treatment for shoulder pain. April 2011 service treatment records (STRs) note painful motion in the shoulder, positive empty can test on the right, and weakness with external rotation. Additional April 2011 STRs indicate a significant amount of pain with range of motion (ROM), especially in more extremes of flexion. External rotation and internal rotation were symmetric bilaterally, and there was some mild crepitus. November 2011 private treatment records (PTRs) note the Veteran's complaints of pain, loss of function, weakness, and stiffness/tightness. The Veteran reported severe constant pain at a 7 out of 10, localized to the right shoulder and left side of the cervical spine. Active ROM testing demonstrated flexion to 140 degrees, abduction to 85 degrees. Passive ROM testing demonstrated flexion to 154 degrees, abduction to 105 degrees, internal rotation to 70 degrees, external rotation to 82 degrees, and glenohumeral abduction to 95 degrees. Pain was noted during examination, positive at 80 degrees. The Veteran underwent a VA examination in December 2012 where they reported no flare ups. Initial ROM testing demonstrated flexion to 160 degrees, with pain beginning there, and abduction to 160 degrees, with pain beginning there. Repetitive use testing with at least three repetitions was the same as initial ROM testing. The examiner noted that that functional loss includes less movement than normal, and pain on movement. Pain was found on palpation. There was guarding, muscle strength was normal, there was no ankylosis, and the Hawkins impingement test, cross body adduction test, empty can test, external rotation infraspinatus strength test, lift of subscapularis test, and crank apprehension and relocation test were all negative. There was no history of mechanical symptoms, recurrent dislocation, or AC joint condition. The examiner indicated that functional impact included pain and limited ROM. January 2014 VA treatment records note that the Veteran took oxycodone for chronic pain for the shoulder. The Veteran underwent a VA examination in October 2020 where they reported functional loss to include difficulty with heavy lifting and limited ROM. Initial ROM testing demonstrated flexion to 120 degrees, abduction to 120 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. The examiner noted that pain, and not ROM, causes functional loss. There was no localized tenderness or pain on palpation, no pain on weight-bearing, and no evidence of crepitus. Repetitive use testing demonstrated flexion to 150 degrees, abduction to 150 degrees, external rotation to 75 degrees, and internal rotation to 75 degrees. The examiner noted that pain and lack of endurance cause functional loss. The examination was not conducted after repeated use over time, but the examiner opined that pain and lack of endurance would cause additional functional loss, and estimate ROM testing would demonstrate flexion to 140 degrees, abduction to 140 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The Veteran reported daily flare-ups that were mild to moderate lasting several days, precipitated by heavy lifting, reaching high, and active movement, and alleviated by ointment. The examination was not conducted during a flare up, but the examiner opined that pain and lack of endurance would contribute to functional loss, and that ROM testing would demonstrate flexion to 130 degrees, abduction to 130 degrees, external rotation to 65 degrees, and internal rotation to 65 degrees. Muscle strength was normal, there was no atrophy, ankylosis, rotator cuff conditions, instability, dislocation, labral pathology, clavicle scapula, AC joint condition, sternoclavicular joint, or conditions or impairments of the humerus. The examiner indicated that functional impact would include shoulder pain, stiffness, limited ROM, and difficulty with lifting more than 15 pounds. The examiner noted that there would be no impact on sedentary activities, and that there evidence of pain on passive ROM and non-weight bearing. Given the above, the Board finds that the criteria for a disability in excess of 20 percent is not warranted as the record is against a finding that range of motion of the right shoulder was limited to such an extent that would warrant a higher rating. The estimated limitation of motion in his left upper extremity would need to be 45 degrees between side and shoulder level for the 30 percent rating to be warranted. 38 C.F.R. § 4.71a, DC 5201. Such estimation is not suggested by the evidence of record, even during a flare up, and even with consideration of functional impairment from pain or lack of endurance. Thus, a higher evaluation is not warranted for limitation of motion. The Board has also considered whether the Veteran is entitled to an increased rating under any alternative diagnostic code for the shoulder. However, the evidence fails to establish ankylosis, impairment of the humerus, or impairment of the clavicle or scapula. See 38 C.F.R. § 4.71a, DCs 5200, 5202, 5203. Therefore, the Board concludes that the symptoms associated with the Veteran's right shoulder disability do not more nearly approximate the criteria for a rating higher than 20 percent at any point during the appeal and the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. The Board is sympathetic to the Veteran's lay statements that the right shoulder disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report observable symptoms because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). They are not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined them during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Therefore, the Board concludes that the symptoms associated with the Veteran's right shoulder disability do not more nearly approximate the criteria for a rating higher than 20 percent at any point during the appeal and the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an evaluation in excess of 10 percent prior to October 26, 2020, and 30 percent thereafter for service-connected neck disability The Veteran's service-connected neck disability is rated under DC 5238. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 38 C.F.R. § 4.71, Plate V. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. DC 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. DC 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under DC 5242. Based on the following, the Board does not find that an evaluation in excess of 10 percent prior to October 26, 2020, and 30 percent thereafter is warranted under either the new or old regulations. November 2011 PTRs note the Veteran's complaints of pain, loss of function, weakness, and stiffness/tightness. The Veteran reported severe constant pain at a 7 out of 10, localized to the right shoulder and left side of the cervical spine. Here, the examiner did not provide ROM findings in terms of degrees, but rather rated their motion on a scale of 4. On active ROM, the examiner rated extension as 4/4, flexion as 4/4, left lateral flexion as 3/4, left rotation as 2/4, right lateral flexion as 3/4, and right rotation 3/4. The Veteran underwent a VA examination in December 2012 where the Veteran denied flare-ups. Initial testing demonstrated full ROM on all movements, for a combined ROM of 340 degrees, with no objective evidence of painful motion. Repetitive use testing demonstrated the same results, but the examiner noted the Veteran's reports of pain on movement. The examiner found localized tenderness or pain to palpation, that there was guarding or muscle spasm present that did not result in abnormal gait or spinal contour, normal muscle strength, normal reflexes, normal senses, and no radiculopathy or IVDS. The examiner opined that the neck disability had no functional impact on the Veteran's ability to work. January 2014 VA treatment records note the Veteran's paracervical neck pain which radiates proximally, and a mild decrease in rotation to the left. The Veteran underwent a VA examination in October 2020 where they reported worsening symptoms, including pain and stiffness with limited movement, and difficulty with heavy lifting. Initial ROM testing demonstrated flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 50 degrees, with a combined ROM of 220 degrees. The examiner noted that ROM itself did not contribute to functional loss, but pain on all ROMs did, and that there was no pain with weight-bearing or on palpation. Repetitive use testing with at least three repetitions demonstrated forward flexion to 25 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 45 degrees, with a combined ROM of 90 degrees. The examiner noted that pain and lack of endurance contribute to functional loss. The Veteran was not examined after repetitive use over time, but the examiner opined that functional loss would include pain and lack of endurance, and that ROM testing would demonstrate forward flexion to 20 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees, with a combined ROM of 160 degrees. The Veteran reported weekly flare ups that vary in severity, lasting several days, precipitated by active movement, turning too far, looking up, or sudden movements, and alleviated by massage. The Veteran was not examined during a flare-up, but the examiner opined that pain and lack of endurance would contribute to functional loss, and that ROM testing would demonstrate forward flexion to 15 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 35 degrees, with a combined ROM of 130 degrees. The examiner found that there was normal muscle strength, reflexes, and senses, and that there was no guarding or spasms, atrophy, radicular pain, ankylosis, or IVDS. The examiner opined that the functional impact would include neck pain, stiffness, limited ROM, and difficulty with heavy lifting. Finally, the examiner noted evidence of pain on passive ROM and non-weight bearing. For the period prior to October 26, 2020 The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for neck disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms, the December 2012 VA examination showed full range of motion on both initial and repetitive use testing. While the November 2011 private examination demonstrated some loss of ROM, the examiner rated forward flexion as 4/4. Further, the examiner did not provide the results in degrees of motion, so it is not possible to determine whether the findings there would result in combined range of motion of 170 degrees or less. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. For the period from October 26, 2020 The preponderance of the evidence is also against a rating in excess of 30 percent for neck disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and limited ROM, including during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that weekly flare-ups would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. As demonstrated in the October 2020 VA examination, even during a flare-up, the Veteran would still maintain ROM of the cervical spine. Even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate the cervical spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. For the entire appeal period, consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Both VA examinations indicated no IVDS, and the Veteran has not asserted that they have it. The Board is sympathetic to the Veteran's lay statements that the neck disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report observable symptoms because this requires only personal knowledge as it comes to them through their senses. Layno, 6 Vet. App. at 465. They are not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined them during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent prior to October 26, 2020, and 30 percent thereafter for the service-connected neck disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, all potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Although January 2014 VA treatment records note the Veteran's reports of radiating pain, neither VA examination found any evidence of any radicular symptoms. Thus, there is no basis for additional separate neurological evaluations. 3. Entitlement to a TDIU In an October 2017 brief, the Veteran's former representative asserted that due to the combination of the Veteran's service-connected disabilities, the Veteran is unemployable. A claim for a TDIU, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 453-54. The March 2019 Board decision considered but ultimately declined to address TDIU under Rice, noting that under 38 C.F.R. § 3.341(b), a rating for TDIU which would first become effective while a Veteran is incarcerated in a penal institution for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313(c). The Veteran was released from incarceration in January 2020. Accordingly, the Board will now address the Veteran's entitlement to a TDIU. A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is assigned a 100 percent combined disability rating from September 26, 2013. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Here, none of the Veteran's service-connected disabilities are individually rated at 100 percent. Accordingly, only the period prior September 26, 2013 will be addressed. For the period prior to September 26, 2013, service connection is in effect for the following disabilities: 1) PTSD with a 70 percent evaluation; 2) obstructive sleep apnea with a 50 percent evaluation; 3) posttraumatic headaches with a noncompensable evaluation; 4) neck disability with a 10 percent evaluation; 5) shoulder disability with a 20 percent evaluation; 6) tinnitus with a 10 percent evaluation; and 7) traumatic brain injury (TBI) with a 10 percent evaluation. The combined disability rating for this period is 90 percent. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and the combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU prior to September 26, 2013 is not warranted. The Veteran's DD-214 indicates that their military occupational specialty (MOS) was petroleum supply specialist. A November 2011 statement from the Veteran's parent notes that the Veteran was unemployed following service. A statement from the Veteran's sibling notes that the Veteran had a friend go with them to fill out an application at Wal-Mart. December 2011 VA treatment records note that the Veteran was working 32 hours per week in the back of the store at Wal-Mart, and that they had previously worked as a cook, in factories and warehouses, and laying carpet. February 2012 VA treatment records note that the Veteran was employed part time at Wal-Mart. During a November 2012 PTSD VA examination, the Veteran reported that they quit their job at Wal-Mart because they were working 18 hours per day, and that they were now working at a pizza restaurant. February 2013 VA treatment records note that the Veteran was unemployed. June 2013 VA treatment records indicate that the Veteran worked a variety of odd jobs. October 2013 VA treatment records note that the Veteran was fired from their Wal-Mart job due to their service-connected right shoulder disability, and that they had also worked as a driver. February 2014 VA treatment records note that the Veteran had worked at Wal-Mart for a while, but that they quit because they do not like lazy people or large crowds, and that they were now picking up odd jobs flipping houses for someone they knew in the community, usually hauling debris to the dump in their truck. The Veteran expressed that they would like to set up a ropes training course with this person, but that they did not have the money to pay the Veteran for that kind of work. During a May 2017 PTSD VA examination, the Veteran reported that they worked at Wal-Mart unloading trucks for one year following service, after which they delivered pizza boxes for over three years. In an October 2017 private medical opinion, the examiner reported that the Veteran had told them that they had not worked since 2011 following stints in retail and pizza delivery. Although not relevant to this appeal period, a January 2020 PTSD VA examination noted that as part of their work release program from prison, the Veteran worked at a fast-food restaurant for a few months. Finally, March 2020 VA treatment records note that the Veteran asserted that they were employed by Wal-Mart following service, but that their service-connected disabilities made them unable to work. The Veteran told the examiner that they sold drugs for income, and that they had also sold drugs prior to joining the military. In a November 2011 statement, the Veteran's parent reported that the Veteran is easily overwhelmed and frustrated, and that their shoulder and neck disabilities make it difficult to do any heavy lifting. They asserted that the Veteran is forgetful and loses things, and has excruciating headaches to the point that they cannot function normally. In a statement from the Veteran's sibling, they reported that the Veteran cannot be around large groups without feeling paranoid and overwhelmed, and that the Veteran was so anxious to apply to their job at Wal-Mart that they went four times before having a friend accompany them. During a November 2012 PTSD VA examination, the examiner opined that a mental condition has been formally diagnosed, but that the symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner also noted that the Veteran was capable of managing their own financial affairs. During a November 2012 TBI VA examination, the examiner noted the Veteran's complaint of mild memory loss, such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items, attention, concentration, or executive functions, but without objective evidence on testing. The examiner found the following: normal judgment; social interaction is routinely appropriate; always oriented to person, time, place, and situation; motor activity normal; visual spatial orientation; subjective symptoms that do not interact with work, instrumental activities of daily living, or work, family, or other close relationships; mild or occasional headaches; mild anxiety no neurobehavioral effects; and able to communicate by spoken and written language and to comprehend spoken and written language. The examiner opined that there would be a functional impact during headache attacks, but provided no further information. A November 2012 VA examination found that the sleep apnea would have no functional impact on the Veteran's ability to work. The same was found for the Veteran's service-connected tinnitus. During a December 2012 VA examination for the neck disability, the examiner opined that there would be no functional impact on the Veteran's ability to work. And during the December 2012 VA examination for the shoulder disability, the examiner noted that functional impact would include pain and limited ROM. And in a September 2013 private vocational opinion, the examiner opined that the Veteran's ability to do work related activities would be affected, to include the following: stand 2 to 4 hours per day; walk 2 to 4 hours per day lift less than 10 pounds; carry less than 10 pounds; miss 3 days of work per month due to medical problems; extra breaks would vary; difficulty concentrating more than 3 days per month and would not stay focused for at least 7 hours of an 8-hour workday. Based on the preponderance of the record, the Board finds that entitlement to a TDIU is not warranted. In this regard, during the appeal period, the Veteran's service-connected disabilities have not precluded them from securing or following a substantially gainful occupation. Notably, the November 2012 VA examination found that the Veteran's psychiatric disability had no effect on occupational or social functioning. The November 2012 TBI examination described the Veteran's symptoms as mild. The sleep apnea examination determined that there was no impact on the Veteran's employability. The December 2012 VA examination also found that the Veteran's neck disability had no functional impact. The Board notes that the shoulder disability examination noted functional impact to include pain and limited ROM. Regardless, the Veteran was employed during this period. The Veteran worked for Wal-Mart, a pizza restaurant, and doing odd jobs flipping houses. In fact, the Veteran has provided no argument in support of their unemployability during this period. The Board notes that the ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In Cantrell v. Shulkin, 28 Vet. App. 382 (2000), the Court vacated a Board decision denying entitlement to TDIU in the case of a claimant who was employed as a park ranger and was paid more than the poverty threshold for one person. The Court held that the meaning of "employment in a protected environment" is not clear from the regulation's plain language and noted that the list of examples in the regulation "suggests that VA may have intended employment 'in a protected environment' to be a term of art that differs from the ordinary, accommodation-based dictionary definition proffered by the [V]eteran." Id. (citing to 55 Fed. Reg. 31,579, 31,580 (Aug. 3, 1990) ("A third comment suggested that VA define what factors would warrant a decision that marginal employment may be held to exist when earned income exceeds the poverty threshold. VA concurs and has revised the proposed regulation to include examples.")). The Court also held that it could not defer to the Secretary's decision not to define the term. Consequently, the Court remanded the issue for failure to define "employment in a protected environment" or otherwise specify factors that adjudicators should consider in making the determination and encouraged VA to define the term. To date, neither the Court nor the Secretary has provided further guidance as to what constitutes "a protected work environment." Accordingly, the Board has no alternative but to attempt to discern a standard from the current law, regulations and precedents. If the Board does not articulate a standard, any decision is likely to be vacated on further appeal for essentially the reasons identified in by the Court in Cantrell. Here, the standard the Board will apply is that employment in a protected environment is an employment relationship in which the employee is selected, at least in part, for a charitable or therapeutic purpose or based on a familial relationship. The Board observes that the examples of "protected environment" used in the text of 38 C.F.R. § 4.16 (a): the family business and sheltered workshop. In the case of a family business, it is common for an employer to hire a relative to fill a position, not because the relative is necessarily the most capable or efficient prospective employee, but for reasons of affection or obligation. The term "sheltered workshop" is not defined in Title 38 of the Code of Federal Regulations. The term "sheltered workshop" is not defined in title 38 of the Code of Federal Regulations, but several state codes define "sheltered work shop" in the following ways: "a facility designed to provide gainful employment for individuals with severe disabilities who cannot be absorbed into the competitive labor market or to provide interim employment for such individuals when employment opportunities for them in the competitive labor market do not exist" (Louisiana); "a facility, or any portion thereof, operated by a nonprofit organization, corporation, partnership, limited liability company or association whose purpose is to provide meaningful work or training activities to individuals with developmental disabilities...." (Oklahoma); "an occupation-oriented facility operated by a not-for-profit corporation, which, except for its staff, employs only persons with disabilities" (Missouri); "an occupation-oriented facility operated by a nonprofit agency, public or private, which except for its staff, employs only handicapped persons" (New Jersey). La. R.S. § 39:1604.4; 63 Okl. St. § 1-865.2; § 178.900 R.S.Mo.; N.J. Stat. § 34:16-40. Moreover, the Social Security Administration (SSA) which, as the Court indicated in Faust v. West, 13 Vet. App. 342 (2000), is the most closely analogous legal context, uses the similar terms "sheltered or special environment" and "sheltered employment." These are not precisely defined in Title 20 of the Code of Federal Regulations. Notably, 20 C.F.R. § 404.1574 (a)(3), which the Code describes as an evaluation guide for employees for determining whether a worker is involved in substantially gainful activity, states: "If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or government aid does not establish that you are not earning all you are being paid...." In applying the above principles to the facts of this case, the Board finds that the Veteran's employment during the applicable period would not be considered "employment in a protected environment" as the term is used in 38 C.F.R. § 4.16(a). This is so because there is no evidence that the purpose of the Veteran's employer is to hire people with disabilities to train or rehabilitate them; in short, there is no evidence that the Veteran was employed for a charitable or therapeutic purpose. Awarding a TDIU would not serve its intended purpose as the Veteran was able to maintain gainful employment for years, despite the severity of the service-connected disabilities. While the Veteran asserts that they had difficulties with their employer associated with their disabilities, they were able to find alternative employment after. Additionally, the Veteran's statements regarding why they were no longer employed with Wal-Mart has varied greatly. Further, the Veteran has not provided clear, updated information as to their employment history. In fact, the only period in which the Board is able to definitively determine that the Veteran was not employed was during their time spent in prison. The Veteran was even able to facilitate an early release even by participating in a work program. In reaching this conclusion the Board notes the severity of the Veteran's service-connected disabilities and the difficulties that it has imposed on their employment. However, the rating schedule already contemplates industrial impairment. Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and "degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"); see also Van Hoose, 4 Vet. App. at 363. ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment."). If the Board were to accept the argument that evidence of occupational limitations due to service-connected disabilities necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a Veteran challenged the assigned evaluation. Accordingly, entitlement to TDIU is not warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.