Citation Nr: 21066924 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-27 567A DATE: November 2, 2021 ORDER Entitlement to a disability rating for thoracolumbar muscle strain in excess of 10 percent prior to January 16, 2014 is denied. Entitlement to a compensable rating from January 16, 2014 to February 29, 2016 for thoracolumbar muscle strain is denied. Entitlement to a disability rating in excess of 10 percent from March 1, 2016 to January 21, 2020 for thoracolumbar muscle strain is denied. Entitlement to a disability rating in excess of 20 percent on and after January 22, 2020 for thoracolumbar muscle strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 16, 2014 is denied. FINDINGS OF FACT 1. The Veteran's low back disability has been manifested by pain, with range of motion, at worse, limited to 80 degrees of flexion, to include during flare-ups. 2. The Veteran's low back disability has been manifested by pain, with range of motion, at worse, limited to 90 degrees of flexion, to include during flare-ups. 3. The Veteran's low back disability has been manifested by pain, with range of motion, at worse, limited to 65 degrees of flexion, to include during flare-ups. 4. The Veteran's low back disability has been manifested by pain, with range of motion, at worse, limited to 45 degrees of flexion, to include during flare-ups. 5. Prior to January 16, 2014, the Veteran's service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5237. 2. The criteria for a compensable evaluation for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5237. 3. The criteria for an evaluation in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5237. 4. The criteria for an evaluation in excess of 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5237. 5. Prior to January 16, 2014, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the United States Army from October 1991 to May 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. The record shows that a July 2013 rating decision granted entitlement to service connection for thoracolumbar muscle strain and assigned an initial evaluation of 10 percent effective from May 23, 2013. The June 2014 rating decision decreased the disability rating for the Veteran's lumbar spine disability to a noncompensable rating effective from January 16, 2014; and the Veteran filed a timely notice of disagreement in July 2014 with the assigned percentage for her disability. As noted in the August 2019 Board decision, the Veteran was in receipt of a schedular 100 percent disability rating the time of the reduction, and there was no change in compensation paid. As such, the Board phrased the issue as an increased rating claim rather than an issue regarding the propriety of the reduction. Based on the foregoing, the Board also finds it appropriate to construe the claim as one for entitlement to an initial increased rating, and it is listed as such above. The Board also acknowledges that the Veteran's January 2014 claim for an increased rating was filed within one year of the July 2013 rating decision that granted a 10 percent evaluation for her lumbar spine condition. However, the Veteran explicitly stated that she was seeking an increase in her current service-connected disabilities. Consequently, she did not express her intent to disagree with the July 2013 rating decision. Thus, the document does not otherwise meet the requirements under 38 C.F.R. § 20.201 and may not be construed as a NOD to the assigned rating decision. Accordingly, the Board recognizes that the appeal period begins on January 16, 2013, the date VA received the claim for an increased rating (January 16, 2014), plus the one-year look-back period. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. Currently, the cervical portions of the spine are rated together without entitlement to separate evaluations for the findings presented. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 provided 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 disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (see also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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 lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran's service-connected thoracolumbar spine condition is rated under 38 C.F.R. § 4.71a, DC 5237. 1. Entitlement to a disability rating for thoracolumbar muscle strain in excess of 10 percent prior to January 16, 2014 is denied. The Veteran underwent testing in November 2011. Repetitive physical evaluation revealed ROM of flexion to 90 degrees, 90 degrees, and 80 degrees. Extension was noted at 35 degrees, 36 degrees, and 30 degrees. Right lateral flexion, left lateral flexion, and left and right lateral rotation were noted to be normal. There was some tenderness and guarding noted but no further limitations were noted due to pain, incoordination, fatigue, or weakness. Muscle tightness and tension were noted. After reviewing the evidence of record as a whole, the Board finds that the assignment of a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability is not warranted. Notably, flexion of the thoracolumbar spine has been no worse than to 85 degrees, warranting no more than the 10 percent rating currently assigned. The Board notes that the assignment of a disability rating should take into account limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Notably, the VA physician performed the required testing and made the relevant inquiries to determine how pain impacts the Veteran. At the examinations, the Veteran was asked about pain, weakness, fatigue, incoordination, and repetitive use. The Board again acknowledges that the Veteran experienced muscle tension. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that she has functional impairment, pain, and limited motion. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent including after loss of range of motion due to repetitive use. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a greater rating under 38 C.F.R. § 4.71a, DC 5237. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a. As noted above, Diagnostic Code 5237 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. However, there is no evidence of incapacitating episodes as contemplated by the regulation, and neither the lay nor medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for intervertebral disc syndrome, and indeed, in light of the lack of any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted during this period. In conclusion, a preponderance of the evidence is against finding an increased rating in excess of 10 percent for the Veteran's service-connected low back disability. 2. Entitlement to a compensable rating from January 16, 2014 to February 29, 2016 for thoracolumbar muscle strain is denied. The Veteran underwent a VA examination to evaluate her lumbar spine condition in May 2014. She denied any flareups. Physical evaluation revealed that the Veteran was capable of flexion to 90 degrees or greater, extension to 30 degrees or greater, right lateral flexion, left lateral flexion, left and right lateral rotation to 30 degrees or greater with no objective evidence of painful motion. No pain or additional loss of range of motion on repetition was observed. The Veteran did not exhibit pain or tenderness upon palpation and did not have muscle guarding or spasms. Muscle strength was 5/5 and no atrophy was noted. Reflex and sensory testing was normal, and the Veteran was negative for the straight leg test and radiculopathy. No IVDS was identified, and no other neurological abnormalities were observed. It was noted that the Veteran had undergone imaging studies and no arthritis was found. The examiner concluded that the Veteran did not experience any functional impact. March 2015 VA treatment records indicated that the Veteran denied back pain. January 2016 records also indicated that the Veteran denied back pain. Following a complete review of the evidence of record, the Board finds that from January 16, 2014 to February 29, 2016, a compensable disability rating for the lumbar spine is not warranted. During that time, the Veteran's forward flexion of the thoracolumbar spine was to 90 degrees or greater and combined range of motion of the lumbar spine was greater than 120 degrees. There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour and there was no evidence of ankylosis. Further, there was no evidence of IVDS, arthritis, or any related neurological symptoms. As such the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is also not warranted during this period. Therefore, the Board finds that a compensable evaluation for this period is not warranted. 3. Entitlement to a disability rating in excess of 10 percent from March 1, 2016 to January 21, 2020 for thoracolumbar muscle strain is denied. The Veteran underwent another VA examination in March 2016. The Veteran denied flareups but noted that it was difficult for her to move around. Physical evaluation revealed flexion to 75 degrees, extension to 30 degrees, right lateral flexion and left lateral flexion to 25 degrees and left and right lateral rotation to 20 degrees. Pain that resulted in functional loss was noted or every range of motion except extension. There was no evidence of pain or localized tenderness upon palpation or evidence of pain with weightbearing. The Veteran was able to perform repetitive testing with some limitation of range of motion. After three repetitions the Veteran was capable of flexion to 65 degrees with pain, extension to 30 degrees, right lateral flexion, left lateral flexion, left and right lateral rotation to 20 degrees. No muscle spasm, abnormal gait or guarding was identified. Muscle strength was 4/5 for hip flexion and knee extension but no muscle atrophy was noted. Sensory testing was normal as was the straight leg raising test. No radiculopathy, arthritis, or ankylosis was identified. No IVDS was identified. The examiner concluded that the Veteran would not be able to do any heavy lifting and found that she would not be able to stand or walk for a prolonged period. In November 2019 VA treatment records, the Veteran reported localized lower back pain. It was noted that the Veteran sought treatment for back spasms in September 2019. After receiving Toradol injections, the Veteran reported that she was doing better and only occasionally experienced low back spasms or stiffness. She denied any lower extremity numbness, tingling, or incontinence symptoms. The Veteran also underwent x-rays of her spine and it was noted that her spine series was within normal limits for her age range. After reviewing the evidence of record as a whole, the Board finds that the assignment of a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability is not warranted. Notably, flexion of the thoracolumbar spine has been no worse than to 65 degrees, warranting no more than the 10 percent rating currently assigned. Even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a greater rating under 38 C.F.R. § 4.71a, DC 5237. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a. There is no evidence of incapacitating episodes and neither the lay nor medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for intervertebral disc syndrome, and indeed, in light of the lack of any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted during this period. In conclusion, a preponderance of the evidence is against finding an increased rating in excess of 10 percent for the Veteran's service-connected low back disability. 4. Entitlement to a disability rating in excess of 20 percent on and after January 22, 2020 for thoracolumbar muscle strain is denied. The Veteran currently has a disability rating of 20 percent for her lumbar spine disability after January 22, 2020. A higher evaluation of 40 percent is not warranted for thoracolumbar spine unless there is (a) forward flexion of the thoracolumbar spine 30 degrees or less; or (b) favorable ankylosis of the entire thoracolumbar spine. The Veteran was provided with a VA examination in January 2020. The Veteran reported flareups once a month lasting a few hours to four to seven days. She stated that the flareups were alleviated by rest. The Veteran also reported functional loss of range of motion, and difficulty with prolonged standing, walking, or sitting. The physical examination revealed range of motion of the thoracolumbar spine to be 60 degrees of forward flexion, 20 degrees of extension, 20 degrees of both left lateral flexion and right lateral flexion, and 20 degrees left lateral rotation and right lateral rotation. Pain was reported as beginning and ending at 55 degrees of forward flexion, 15 degrees of extension, 15 degrees of left and right lateral flexion, and 15 degrees of left and right lateral rotation. Pain, fatigue, lack of endurance, painful motion and tenderness were found to be present on examination. Additional loss in range of motion was found after repetitive use testing with forward flexion to 50 degrees and all other ranges of motion to 10 degrees. The examiner found that flareups further limited forward flexion to 45 degrees. The Veteran did not have guarding or muscle spasms. Muscle strength was normal, and no muscle atrophy was noted. The sensory examination and straight leg testing were normal. There was no radiculopathy, ankylosis, or other neurological symptoms identified. The Veteran did not have IVDS, but it was noted that the Veteran utilized a cane. No scarring or fractures were noted. The examiner determined that the Veteran would have difficulty lifting more than 35 pounds or walk more than half a mile due to her back condition. The Veteran was provided with a final VA examination in June 2021. The Veteran reported that while performing activities of daily living she experienced pain in her lower back that radiated into her upper back. She rated her pain at three out of ten and eight out of ten when aggravated. She was treating her spine condition with injections and physical therapy. The Veteran denied flareups. The Veteran also reported difficulty with prolonged standing, walking, or sitting. The physical examination revealed active and passive range of motion of the thoracolumbar spine to be 90 degrees forward flexion, 30 degrees extension, 30 degrees of both left lateral flexion and right lateral flexion, and 30 degrees left lateral rotation and right lateral rotation. Pain was reported with forward flexion and extension and with weight bearing. There was evidence of localized tenderness with palpation, but the Veteran was capable of repetitive use testing without additional loss of range of motion. The Veteran did not have any muscle spasms. She did exhibit muscle guarding but not to the level at which it would result in an altered gait or spinal contour. Muscle strength was normal, and no muscle atrophy was noted. The sensory examination and straight leg testing were normal. There was no radiculopathy, ankylosis, or other neurological symptoms identified. The Veteran did not have IVDS. No scarring or fractures were noted. The examiner determined that the Veteran would have difficulty with prolonged standing, walking, and sitting. Viewing the examination report, a rating higher than 20 percent is not warranted because the Veteran's forward flexion has been measured at worst, as 45 degrees. Although the Veteran's extension has worsened, this decreased motion is not akin to having favorable ankylosis of the entire thoracolumbar spine. Additionally, although pain has been found to significantly limit the Veteran's functional ability with repeated use over a period of time and during flare-ups, the limitation on range of motion accounting for this pain is still not enough to warrant a rating in excess of 20 percent. Additionally, the evidence does not show that the Veteran had ankylosis of the spine, IVDS, or any other associated neurological symptoms. The Veteran did not report any incapacitating episodes and she was not prescribed bedrest by a physician at any point during this period. Therefore, a higher evaluation under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted during this period. As such an increased evaluation in excess of 20 percent is not warranted. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 16, 2014 is denied. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. 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). The Board notes that the Court of Appeals for Veterans Claims (Court) recently issued a decision concerning TDIU. The Court noted that TDIU claims have two components that must both be met for a grant of TDIU, both economic and non-economic. As noted above, the economic consideration is a determination if the Veteran has earned annual income that does not exceed the poverty threshold for one person. The second component is determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue to include factors including but not limited to the Veteran's limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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 to include factors including but not limited to the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The record shows that during the appeal period of the Veteran's increased rating claim for her lumbar spine disability, the Veteran reported that she had been unemployed since retiring from the Army in 2013, and she indicated that symptoms of her service-connected major depressive disorder and posttraumatic stress disorder (PTSD) prevented her from rejoining the workforce. The Veteran's representative also asserted in a July 2019 Informal Hearing Presentation that her lumbar spine disability impacted her employability. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether a TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board has assumed jurisdiction over the issue. The Board notes that during the appeal period for the Veteran's initial increased rating claim, the Veteran was awarded a 100 percent schedular rating for her service-connected major depressive disorder and PTSD effective from January 16, 2014. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, 22 Vet. App. at 293-94. Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. However, the Veteran was already awarded SMC pursuant to 38 U.S.C. § 1114(s) effective from January 16, 2014. As such, the issue of entitlement to a TDIU during this period is moot and only the portion of the appeal period prior to January 16, 2014 is currently on appeal. The Board notes that the appellate period begins January 16, 2013, one year prior to the date that the Veteran submitted his claim for increased evaluation for his lumbar spine condition. The Board notes that the Veteran is qualified on a schedular basis for this claim for the present appeal period. Here, the Veteran is service connected for the following: major depressive disorder and PTSD at 70 percent from May 23, 2013; status post left bunionectomy at 30 percent from May 23, 2013; overactive bladder disorder at 10 percent from May 23, 2013, thoracolumbar muscle strain at 10 percent from May 23, 2013; left knee patellofemoral pain syndrome at 10 percent from May 23, 2013; right knee tendonitis at 10 percent from May 23, 2013; sinusitis at zero percent from May 23, 2013; and tension headaches at 30 percent from May 23, 2013. The percentage requirements for a TDIU are met because the Veteran has consistently had two or more service-connected disabilities, one of which was rated as at least 40 percent disabling, and his combined disability evaluation was always at least 70 percent. 38 C.F.R. § 4.16 (a). According to January 2014 VA records, the Veteran stated that she had been retired since she left the Army in 2013. She had 22 years of service in the military working in logistics. The Veteran reported that her lumbar spine condition and PTSD prevented her from continuing her career. She had hoped to become a Sergeant Major. According to November 2011 VA records, the Veteran completed high school and an associate degree, she expressed her desire to complete her bachelor's degree. Prior to the military she had worked as a waitress for five years as well as several other temporary jobs. Addressing the economic component of TDIU, the probative lay and medical evidence establishes that the Veteran stopped working in 2013. The Veteran has stated that she stopped working due to his physical and mental ailments. Addressing the noneconomic component of TDIU, the Veteran has a high school diploma, some college education, and several years of experience in military logistics. There is no indication that the Veteran underwent any other formal study. In November 2011 VA records, the examiner determined that the Veteran was not totally occupationally impaired. The Veteran also underwent a psychosocial evaluation in July 2013. It was noted that the Veteran suffered from impairment in work function. In August 2013 records the Veteran reported symptoms of sleep disturbance and problems concentrating due to her psychiatric conditions. While in January 2014 VA records the Veteran reported that she was emotionally overwhelmed performing her job duties. It was also noted in these records that the Veteran had retired from the military due to her foot condition. The probative lay and medical evidence of record indicates that the Veteran was not precluded from gainful employment prior to January 16, 2014. Although the Board acknowledges that the Veteran's service-connected disabilities would cause the Veteran difficulty in concentrating and completing tasks in an efficient manner it would not completely preclude her from gainful employment. Though it was noted that the Veteran retired from her military career due to her foot condition, there is no indication that the Veteran would not be able to perform well in sedentary employment. During this period, the Veteran's thoracolumbar spine condition was mild. While there are no medical records from this appellate period detailing the Veteran's spine condition, November 2011 records indicated that while the Veteran experienced muscle strain, her flexion was only limited by 10 degrees after repetitive testing. All other ranges of motion were normal. In the May 2014 VA examination, the Veteran's range of motion of the lumbar spine was completely normal and no pain was noted. Therefore, it is likely that the Veteran would be able to sustain sedentary employment. And though it was determined that the Veteran's PTSD and depression would make it difficult for the Veteran to be fully efficient in completing occupational tasks, it was not determined that the Veteran would be unable to work. When considering all of the evidence of recordboth as to economic and non-economic impact of the service-connected disabilitiesthe Board finds that the preponderance of the evidence is against a finding that her service-connected disabilities precluded her from securing and maintaining substantially gainful employment within the Veteran's particular skill set prior to January 16, 2014. Therefore, the Veteran's claim for TDIU is denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.