Citation Nr: 21072806 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 12-30 356 DATE: December 6, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for major depression with panic disorder with agoraphobia and alcohol dependence in early partial remission, prior to September 4, 2016, is granted. Entitlement to an initial staged rating in excess of 70 percent for major depression with panic disorder with agoraphobia and alcohol dependence in early partial remission, from September 4, 2016, is denied. Entitlement to a compensable initial rating prior to February 12, 2021, and 20 percent thereafter for thoracolumbar strain, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 4, 2016, is granted. FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran's major depression with panic disorder with agoraphobia and alcohol dependence in early partial remission has been manifested by occupational and social impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Prior to February 12, 2021, the Veteran's thoracolumbar strain was asymptomatic, and did not result in any functional impairment. 3. From February 12, 2021, the Veteran's thoracolumbar strain has not manifest as forward flexion of the thoracolumbar spine 30 degrees or less; or, as favorable ankylosis of the entire thoracolumbar spine. 4. The Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to September 4, 2016. CONCLUSIONS OF LAW 1. Prior to September 4, 2016, the criteria for an initial rating of 70 percent, but no higher, for major depression, with panic disorder with agoraphobia and alcohol dependence in early partial remission, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. From September 4, 2016, the criteria for an initial staged rating in excess of 70 percent for major depression, with panic disorder with agoraphobia and alcohol dependence in early partial remission, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 3. Prior to February 12, 2021, the criteria for a compensable initial rating for thoracolumbar strain have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237. 4. From February 12, 2021, the criteria for an initial staged rating in excess of 20 percent for thoracolumbar strain have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237. 5. The criteria for a TDIU, prior to September 4, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to December 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran presented testimony at a virtual hearing before the undersigned Veteran Law Judge. A transcript of that hearing is associated with the record. In January 2021, the Board remanded the Veteran's claims on appeal for further development. Thereafter, a February 2021 rating decision granted a 100 percent for major depression, with panic disorder with agoraphobia and alcohol dependence in early partial remission, effective February 11, 2021. As this is the maximum rating possible under 38 C.F.R. § 4.130, the Board will not address the period from February 11, 2021 onward. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. Entitlement to an initial rating in excess of 50 percent prior to September 4, 2016 and in excess of 70 percent thereafter for major depression, with panic disorder with agoraphobia and alcohol dependence in early partial remission. Service connection for depression not otherwise specified (NOS), with panic disorder with agoraphobia and alcohol dependence in early partial remission ("psychiatric disability") was established by a June 2009 rating decision, which assigned a 30 percent disability rating from December 11, 2008 under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9435 for unspecified depressive disorder (the RO has since changed the rating to Diagnostic Code 9434 for major depressive disorder) Subsequently, in a September 2012 rating decision, the RO increased initial rating for the Veteran's psychiatric disability from 30 percent to 50 percent effective December 11, 2008. By a September 2016 rating decision, disability rating for the psychiatric disability was increased from 50 percent to 70 percent effective September 4, 2016. In a February 2021 rating decision, the RO recharacterized the disability as major depression, with panic disorder with agoraphobia and alcohol dependence in early partial remission, and increased the disability rating from 70 percent to 100 percent effective February 11, 2021. Because, however, the RO did not assign the maximum disability rating for the entire rating period on appeal, the appeal for a higher initial rating prior to February 11, 2021 remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting; inability to establish and maintain effective relationships.). Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including (if applicable) those identified in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed.)). See Mauerhan, 16 Vet. App. 436. The Veteran underwent a VA examination in April 2009. On mental status examination, the Veteran was fundamentally oriented in all spheres. Expressed cognitions showed poverty of content secondary to depression and anxiety, however, overall organized to topic in an appropriate manner. There was no indication of psychotic processes, delusional disorder, loosened association, or organicity. His eye contact was moderately sustained. His affect was fairly rigid and narrow, and dominant mood was dysphoric. He appeared moderately depressed, but he reported no significant difficulties with either recent or remote memories. The Veteran reported a history of outpatient treatment for alcohol dependence due to work stress and taking medication for social anxiety in 2008. He was currently unemployed but reported overall competency to attend to his own daily needs including meals, hygiene, and medications. He experienced panic attacks one to two times per week with associated symptoms of agoraphobia. He denied any psychotic process, and there was no indication of suicidal or homicidal ideation. The VA examiner noted that the overall impact of the Veteran's present psychological stress posed moderate difficulties for him both in social and occupational interactions secondary to mixed symptoms of depression and anxiety with onset of panic attacks. He was able to engage in fairly normal conversation, although he obviously struggled in this endeavor. He was withdrawn and avoidant in interactions secondary to anxiety. The diagnoses were depression, NOS, panic disorder with agoraphobia, and alcohol dependence in early partial remission. The Veteran was competent to handle his own financial affairs. A September 2016 PTSD Disability Benefits Questionnaire (DBQ) shows diagnoses of anxiety disorder and depression. The Veteran reported anxiety, depression, agoraphobia, difficulty in facing crowds, going to unknown places, and evening sleep problems related to anxiety. Inability to manage these symptoms made him depressed and medications did not give him much relief. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, but total occupational and social impairment was not found. The Veteran reported that after discharge from military service, he did not work for almost two years. He then worked as a bartender, a salesman, and as a warehouse worker but kept having problems in these jobs and had not worked since 2012. On examination, the Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and inability to establish and maintain effective relationships. He was capable of managing his financial affairs. The examiner stated that both the Veteran's anxiety and depression were getting worse, and he was not getting much relief from the treatment he was receiving. He had not been able to hold on to a steady job and was not able to build up fulfilling relationship with his own family. Private treatment records dated July 2011 to April 2021 reflect that the Veteran had been undergoing psychotherapy for a diagnosis of panic disorder with agoraphobia. He has been prescribed medications. Based on the foregoing evidence, the Board determines that the Veteran is entitled to an initial rating of 70 percent for psychiatric disability as his mental disorder impairment more closely approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking or mood, for the entire rating period on appeal. In this regard, the Board observes that the April 2009 VA examiner did not specifically find occupational and social impairment with deficiencies in most areas. However, the examiner who conducted the September 2016 VA examination indicated that the Veteran had showed occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood due to symptoms related to anxiety and depression. Notably, the examiner noted that based on the Veteran's employment history since discharge from military service in December 2008, the Veteran was unable to hold on to a steady job and had not been able to build up a fulfilling relationship with his own family. Moreover, the April 2009 VA examination noted that while there was no indication of psychotic process, the Veteran's mood was moderately depressed, and he had been undergoing treatments for alcohol dependence. The Board finds this suggestive of deficiencies in judgement and mood. Therefore, the Board finds that the severity of the Veteran's symptoms relates back to his time after separation. Therefore, resolving any doubt in favor of the Veteran, the Board finds that an increased rating of 70 percent is granted for the entire period on appeal. However, there is no indication that the Veteran has had symptoms indicative of a 100 percent rating, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or symptoms of a similar nature, severity, of frequency. Further, in reviewing the medical evidence as a whole, the Board finds that functional impairment comparable to total social and occupational impairment has not been shown in this case. The Board observes that VA treatment records and DBQ examination reports indicate that there was no evidence of 'total occupational and social impairment.' While a health care provider's characterization of the severity of disability is not dispositive absent corroborating symptomatology, it is probative evidence that the Board may take into consideration. Here, the evidence of record shows that while the Veteran had been working sporadically as a bartender, salesman, and warehouse worker. He was married with a child. To the extent that occupational and social impairment was entirely destructive to his work and family life, the evidence does not demonstrate total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Accordingly, while the Veteran has shown substantial social and occupational impairment, the evidence does not demonstrate total social and occupational impairment. See id. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a rating higher than 70 percent for the Veteran's major depression with panic disorder with agoraphobia and alcohol dependence in early partial remission, the doctrine is not for application. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable initial rating prior to February 12, 2021 and in excess of 20 percent thereafter for thoracolumbar strain. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Veteran's lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. This diagnostic code sets forth the criteria for rating lumbosacral or cervical strain. Spine disabilities can be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Effective February 7, 2021, a portion of the rating schedule for evaluating musculoskeletal disabilities of the spine was revised. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244). Specifically, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS). Diagnostic Code 5243 for IVDS was revised to include an instruction to use this Diagnostic Code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Veteran's lumbar spine disability is currently evaluated as noncompensable prior to February 12, 2021, and as 20 percent disabling thereafter. As to each of the periods for consideration, the Veteran essentially contends that his lumbar spine disability has been more disabling than contemplated by the currently assigned ratings. The question for the Board, therefore, is whether the Veteran's disability picture more nearly approximated the criteria for a higher rating. Prior to February 12, 2021 During a January 2009 VA general medical examination report, the Veteran reported intermittent right-sided mid to lower back discomfort. He did not have flare-ups, radicular symptoms, or incapacitating episodes. Examination of the thoracolumbar spine revealed no tenderness. The Veteran was currently asymptomatic. Range of motion (ROM) testing was entirely normal with forward flexion from 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees in both directions, and lateral rotation to 30 degrees in both directions. Measurement was obtained without hip involvement. Repetitive ROM did not cause discomfort, nor did it decrease the ROM. ROM was not limited by pain. There was no evidence of fatigue, weakness, or lack of endurance following repetitive use. Motor, sensory, and reflex examinations were normal. The impression was thoracolumbar strain with "no significant functional limitations due to this problem at this time." After a review of all the evidence of record, lay and medical, the Board finds that for the initial rating period prior February 12, 2021, the lumbar spine disability was manifested by flexion greater than 85 degrees and combined ROM of the thoracolumbar spine greater than 235 degrees, without muscle spasm, guarding, localized tenderness, or vertebral body fracture with loss of 50 percent or more of the height. As such, the Board finds that a compensable initial rating for the lumbar spine disability is not warranted for the period prior to February 12, 2021. During the January 2009 VA examination, the Veteran's lumbar spine disability was asymptomatic and had full range of motion, without evidence of arthritis, painful motion, episodes of flare-ups, or any limitation of motion. Therefore, the Board finds that a compensable initial rating is not warranted under the General Rating Formula for the lumbar spine disability prior to February 12, 2021. 38 C.F.R. §§ 4.3, 4.7, 4.71a. From February 12, 2021 A February 2021 VA Back Conditions DBQ shows the Veteran's report of low to mid back pain, dull and aching, and difficulty to repeatedly bend and twist the spine and lift or carry objects. He described radiation of pain with tingling into the buttocks but denied pain, numbness, or tingling distal to this. There was no bowel or bladder dysfunction. He reported flare-ups of increased back pain, moderate in severity, occurring weekly lasting one to three days precipitated by exercising. Functional impairment was reduced lumbar spine ROM. Initial range of motion testing revealed forward flexion of 80 degrees; extension of 20 degrees; right and left lateral flexion of 20 degrees; and right and left lateral rotation of 20 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in RO after repetitive testing. There was pain noted on active and passive ROM testing. The examiner estimated that ROM after repeated use over time would consist of forward flexion of 70 degrees; extension of 15 degrees; right and left lateral flexion of 20 degrees; and right and left lateral rotation of 20 degrees due to pain. The examiner further estimated that ROM during a flare-up would consist of forward flexion of 60 degrees; extension of 10 degrees; right and left lateral flexion of 15 degrees; and right and left lateral rotation of 20 degrees due to pain. There was no localized tenderness or guarding. However, there was muscle spasms of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. With regard to additional factors contributing to disability, the examiner noted interference with sitting as prolonged sitting caused pain. Muscle strength was normal, and there was no muscle atrophy. Deep tendon reflexes and sensory examinations were also normal. Straight-leg raising test was negative, bilaterally. There was no ankylosis. The examiner indicated that there was no radicular pain or any other signs or symptoms due to radiculopathy or other neurological abnormalities. The examiner indicated that the Veteran did not have IVDS. As to the functional impact on the Veteran's ability to perform occupational task, the examiner indicated there was mild impact on ability to repeatedly bend/twist the spine and lift/carry heavy objects. After careful consideration of the medical and lay evidence of record, the Board concludes that, prior to February 12, 2021, a disability rating in excess of 20 percent for the Veteran's lumbar spine disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Specifically, a higher rating is not warranted under the General Rating Formula because the Veteran's forward flexion of the spine did not more nearly approximate limitation to 30 degrees or less, even with consideration of his reports of pain and related functional impairment. 38 C.F.R. § 4.71a, General Rating Formula. At its worst, the February 2021 VA examiner estimated that the Veteran's forward flexion of the spine was limited to 60 degrees during a flare-up. The Veteran described intermittent mid to low back pain with flare-ups of pain that lasted an average of one to three days and was moderate in intensity. The examiner found that the Veteran's lumbar spine disability would have a mild impact on his ability to work due to limitations with prolonged sitting and lifting/carrying heavy object. The Board has considered the Veteran's objective and subjective back symptoms but cannot find that forward flexion, even with consideration of functional impairment due to pain, spasms, and flare-ups, more closely approximated forward flexion limited to 30 degrees or less during this period. Further, the medical records show, and the Veteran does not contend, that he had favorable ankylosis of the entire thoracolumbar spine. As such, a higher rating is not warranted under 38 C.F.R. § 4.71a, General Rating Formula. As for incapacitating episodes due to IVDS, the medical evidence establishes that the Veteran does not have IVDS. There is no evidence of record that a physician has prescribed any period of bed rest to treat the Veteran's IVDS or any other aspect of his lumbar spine disability. The Veteran has not contended otherwise. Consequently, the Board finds that the Veteran's lumbar spine disability has not been manifested as incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months to warrant a higher disability rating under the criteria for IVDS. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Additionally, the change to Diagnostic Code 5243 effective February 7, 2021 states that the criteria should be applied for intervertebral disc syndrome only when there is disc herniation with compression and/or irritation of the adjacent nerve root. As the evidence does not reflect that the Veteran suffers intervertebral disc syndrome/lumbosacral disc herniation, the revised criteria is not applicable. The Board has also considered whether separate neurological ratings are warranted in this case. However, the February 2021 VA DBQ does not show any neurological or radicular abnormalities in connection to the lumbar spine disability. As the preponderance of the evidence is against the claim for higher ratings, there is no doubt to be resolved, and ratings greater than those currently assigned for the Veteran's service-connected lumbar spine disability are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to a TDIU prior to September 4, 2016. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. Prior to September 4, 2016, the Veteran's service-connected disabilities included: major depression, with panic disorder with agoraphobia and alcohol dependence in early partial remission, rated as 70 percent disabling; thoracolumbar strain, rated as noncompensable; reactive airway disease, asymptomatic, rated as noncompensable; and cardiac palpitations and murmurs, rated as noncompensable. The Veteran's combined disability rating was 70 percent prior to September 4, 2016. As the Veteran has "one disability" rated at 40 percent or more and a combined disability rating of 70 percent or more, the threshold requirements for a TDIU are met prior to September 4, 2016. 38 C.F.R. § 4.16(a). With the threshold requirements satisfied, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. A Form 21-8940 received by VA in October 2012 reflects that the Veteran had a high school education and started attending a college in June 2012. He indicated that his service-connected depression, panic disorder, agoraphobia, and alcohol dependence affected full time employment since separation from service in December 2008 and he became too disabled to work on May 15, 2007 while in service. Since his separation from service, he had odd jobs working as a salesperson from July 2011 to February 2012 and as a material handler at a warehouse from February 2012 to October 2012. He indicated that the most he ever earned in one year was $15,000.00 in 2012. (Continued on the next page) Accordingly, the Board finds that, based on his educational and occupational history, the Veteran was precluded from obtaining any form of substantially gainful employment from December 11, 2008 forward due to his service-connected disabilities. The Veteran indicated on his October 2012 Application for Increased Compensation Based on Unemployability that the most he earned was fifteen thousand dollars in the year of 2012. The Board finds that such employment was only marginal and entitlement to a TDIU is warranted. The Board has considered the benefit-of-the-doubt rule in granting this benefit. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.