Citation Nr: 21073609 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-51 385 DATE: December 9, 2021 ORDER Entitlement to an evaluation in excess of 20 percent prior to October 25, 2019 for service-connected thoracic and lumbar myofascial strain and thoracolumbar degenerative disc disease (back disability) is denied. Restoration of a 40 percent rating from October 20, 2020 for service-connected back disability is granted. Entitlement to an evaluation in excess of 40 percent from October 25, 2019 for service-connected back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 25, 2019 is denied. FINDINGS OF FACT 1. Prior to October 25, 2019, the Veteran's back disability was not manifest by forward flexion of 30 degrees or less, unfavorable ankylosis of the entire thoracolumbar spine, or favorable ankylosis of the entire thoracolumbar spine. 2. The evidence of record is against a finding that improvement of the Veteran's back disability reflected a sustained improvement in their ability to function under the ordinary conditions of life. 3. From October 25, 2019, the Veteran's back disability was not manifest by unfavorable ankylosis of the entire thoracolumbar spine. 4. Prior to October 25, 2019, the Veteran's service-connected disabilities did not render them unemployable. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent prior to October 25, 2019, and 40 percent thereafter for service-connected back 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) 5242. 2. The reduction in rating from 40 percent to 20 percent for the Veteran's back disability, effective October 20, 2020, was not proper, and restoration is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, DC 5242. 3. The criteria for entitlement to a TDIU prior to October 25, 2019 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 September 1969 to February 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). The back disability issue was previously before the Board in April 2019, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand in an April 2020 rating decision, the RO granted an evaluation of 40 percent from October 25, 2019. In a December 2020 rating decision, the RO reduced the rating to 20 percent. As this does not reflect a full grant of the benefits sought, the back disability issue remains on appeal. Additionally, the Board finds that a claim of entitlement to a TDIU has been reasonably raised by the record, and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). Throughout the appeal period, the Veteran's representative has repeatedly raised a claim to a TDIU, including in the August 2018 brief in support of this appeal. In August 2020, the Veteran submitted a formal claim for a TDIU. In a November 2020 rating decision TDIU was granted effective October 25, 2019. The grant of a TDIU for a portion of the period does not bifurcate the appeal from the underlying disability appeal because it only serves as a partial grant; thus, when the agency of original jurisdiction (AOJ) fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. Harper v. Wilkie, 30 Vet. App. 356, 360-62 (2018). Accordingly, a claim of entitlement to a TDIU prior to October 25, 2019 remains on appeal. 1. Entitlement to an evaluation in excess of 20 percent prior to October 25, 2019 for service-connected back disability 2. Restoration of a 40 percent rating from October 20, 2020 for service-connected back disability 3. Entitlement to an evaluation in excess of 40 percent from October 25, 2019 for service-connected back disability 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 an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran filed a claim for an increased rating for the back disability in September 2016. Accordingly, the relevant time period for consideration is from September 2015. 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). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, DC 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Veteran's service-connected back disability is rated as DC 5242. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent rating 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 disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension. Fixation of a spinal segment at zero degrees is considered favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Chavis v. McDonough, 34 Vet. App. 1 (2021). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. 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. 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. The Veteran underwent VA examinations in November 2016, October 2019, and October 2020. During the November 2016 VA examination, the Veteran reported that their back pain had grown worse, but denied functional loss or impairment. Initial range of motion testing demonstrated forward flexion to 90 degrees, extension to 30 degrees, bilateral flexion to 30 degrees each, and bilateral rotation to 30 degrees each, with no pain noted on examination. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time, but pain, weakness, fatigability, or incoordination did not significantly limit ability, and no additional loss in range of motion was noted. The Veteran reported flare-ups, described as pain with prolonged standing, sitting, and walking, but did not suggest any loss of range of motion. The Veteran was not examined during a flare-up, but the examiner opined that the examination is neither medically consistent or inconsistent with the Veteran's statement's describing functional loss during a flare-up, and that during a flare-up functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. There were no findings of ankylosis or IVDS. During the October 2019 VA examination, the Veteran reported symptoms to include pain, inability to sleep, inability to ride in a car for long distances, and inability to fly unless in first class. The Veteran stated that they take pain medication for treatment, and that they can do minimal lifting, tire easily, has to be careful while bending, and cannot stand or sit for too long. Initial range of motion testing demonstrated forward flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and bilateral rotation to 30 degrees each with pain noted on all motions, on weight-bearing, on non-weight bearing, and on palpation. Passive range of motion testing was found not to be medically appropriate. The Veteran was able to perform repetitive-use testing, but there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, but the examiner opined that pain, fatigue, weakness, and lack of endurance would cause function loss. The examiner estimated range of motion demonstrate forward flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and bilateral rotation to 30 degrees each. The Veteran reported flare ups that slow them down, that prevents them from finishing projects for a couple of days, and that they are unable to sleep for more than 4 to 5 hours. The Veteran was not examined during a flare up, but the examiner opined that pain, fatigue, weakness, and lack of endurance would cause function loss. The examiner estimated range of motion demonstrate forward flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and bilateral rotation to 25 degrees each. There were no findings of ankylosis or IVDS. During the October 2020 examination, the Veteran reported less movement and more pain, dizziness, difficulty sleeping, and loss of memory from pain pills. Initial range of motion testing demonstrated forward flexion to 50 degrees, extension to 10 degrees, bilateral flexion to 20 degrees each, and bilateral rotation to 20 degrees each, with range of motion and range of motion contributing to functional loss. There was no evidence of pain on weight-bearing, non-weight bearing, passive range of motion testing, or on palpation. The Veteran was able to perform repetitive-use testing, but there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The Veteran reported flare-ups occurring some days that are easily treated with pain pills, and other days with more pain and stiffness. The Veteran described the flare-ups as moderate, that they usually last two days, are precipitated by any movement, and alleviated by rest and restricted movement. The Veteran was not examined during a flare-up, but the examiner opined that pain would significantly limit functional ability with flare-ups and described in terms of range of motion forward flexion to 40 degrees, extension to 5 degrees, bilateral flexion to 10 degrees each, and bilateral rotation to 10 degrees each. There was no evidence of any ankylosis or IVDS. Finally, various VA treatment records, such as an entry in September 2018, note the Veteran's complaints of back pain, but do not provide any information regarding range of motion or flare-ups. Disability rating prior to October 25, 2019 Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated and already in receipt of a 20 percent schedular rating for the back disability. Range of motion testing demonstrated forward flexion at worst to 90 degrees. While the Veteran reported flare-ups consisting of increased pain, the examiner opined that during flare-ups and after repetitive use over time functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up or after repetitive use over time. Treatment records do not show greater limitation of motion than the examination findings, nor do the Veteran's statements. The examination also did not find any evidence of unfavorable ankylosis of the entire thoracolumbar spine or favorable ankylosis of the entire thoracolumbar spine. Given the above, a higher rating is not warranted based on limitation of motion for the period prior to October 25, 2019. Restoration of the 40 percent rating from October 20, 2020 Before addressing whether a higher rating is warranted for the period from October 25, 2019, the Board will address the rating reduction in the December 2020 rating decision. Disability ratings may be reduced, however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. In particular, 38 C.F.R. § 4.13 requires that in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement in a disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. § 3.344(c), applicable to ratings such as these, in effect for less than five years, requires improvement before an evaluation is reduced. Implicit in the regulations is the notion that any improvement must be of such a nature as to warrant a change in the evaluation. The remaining provisions of 38 C.F.R. § 3.344 regarding whether the recent examination is as full and complete as the prior examination do not apply where the rating has not been in effect for five years or more. In considering the propriety of a reduction, the Board must focus on the evidence available to the VA Regional Office when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. Applying the facts to the criteria discussed above, the Board finds the evidence before the VA Regional Office at the time of the December 2020 rating decision did not indicate an overall improvement in the Veteran's service-connected back disability, including an actual improvement the ability to function under the ordinary conditions of life and work. The dispositive issue here is whether the disabilities improved, not whether specific criteria delineated in the rating schedule were met. While the October 2020 examination report contains some indication of improvement compared to the October 2019 examination, extension was limited to 5 degrees during a flare-up (compared to 15 degrees during the October 2019 examination), left lateral flexion was limited to 10 degrees (compared to 15 degrees), and bilateral rotation was limited to 10 degrees each (compared to 25 degrees). Additionally, the October 2020 examination indicated regular use of a brace, while the October 2019 examination noted that the Veteran did not use any assistive devices. The Veteran's statements made to the October 2020 examiner are similarly inconsistent with improvement of the disability. Specifically, they reported that that the symptoms consisted of less movement and more pain, dizziness, and difficulty sleeping. At the October 2019 examination, the Veteran reported pain, difficulty sleeping, and that they cannot stand or sit for too long. Considering the evidence under the laws and regulations as set forth above, the Board finds that there has not been actual improvement in the service-connected back disability. While the October 2020 VA examination reports indicate improvements in some areas, the Veteran's range of motion testing was worse in other parameters, and that they were found to require the use of a brace. The October 2020 findings and the Veteran's statements are supportive and consistent with a finding that there has not been actual improvement in the disability. For all of these reasons, the 40 percent rating for back disability is restored effective October 20, 2020. Disability rating from October 25, 2019 Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated and already in receipt of a 40 percent schedular rating for the back disability. The only basis for a higher rating of 50 percent under the General Rating Formula is if there is evidence of ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable); compare Chavis, supra. Neither the October 2019 or the October 2020 VA examinations indicate any ankylosis, or even the functional equivalent of favorable ankylosis. Favorable ankylosis means that the person's spine is frozen in a neutral position or zero degrees. See 38 C.F.R. § 4.71a, 5010-5238, Note (5). Further, Note (5) clarifies that unfavorable ankylosis is a condition in which... the entire thoracolumbar 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... subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Thus, the Board finds that higher ratings based on ankylosis are not supported or warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, 5010-5238. Additionally, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206. Despite the Veteran's complaints, pain did not result in unfavorable ankylosis of the lumbar spine at any time during the period on appeal. See Chavis, 34 Vet. App. 1. In this regard, VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned ratings. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted during the entire appeal period for the Veteran's back disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Consideration was given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding any IVDS requiring physician prescribed bed rest for a duration that meets the criteria for a higher rating at any point during the entire appeal period. 38 C.F.R. § 4.71a. 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). The Board notes that the Veteran is already service-connected for sciatica of the bilateral lower extremities, each with a 10 percent rating under DC 8520 from October 20, 2020. Disability evaluations of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent evaluation is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. No evidence of any radiculopathy was found at either the November 2016 or the October 2019 VA examinations, and the October 2020 examination only indicated evidence of mild symptoms or radiculopathy. VA treatment records also do not indicate any radicular symptoms prior to the October 2020 examination. Accordingly, the Board finds that the Veteran is already adequately compensated with a 10 percent evaluation from October 20, 2020. Based on these findings, the Board concludes that a rating higher than 20 percent prior to October 25, 2019 and 40 percent thereafter is not warranted, under either the rating criteria prior to, or from February 7, 2021. In denying higher ratings, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a TDIU prior to October 25, 2019 The Veteran has asserted that they are unable to work due to their service-connected disabilities. As noted above, they are already in receipt of a TDIU from October 25, 2019; however, the period from September 28, 2016 remains on appeal. 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 Court has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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). As "sedentary" is defined as requiring or marked by much sitting, e.g., a "sedentary desk job," the Board finds that sedentary employment is a job where the worker primarily sits down. See Webster's II New College Dictionary 999 (1999). 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). Service connection is in effect for the following disabilities: 1) depressive disorder due to the service-connected back disability with a 70 percent evaluation; 2) back disability with a 20 percent evaluation prior to October 25, 2019, and 40 percent thereafter; 3) left lower extremity sciatica with a 10 percent evaluation from October 20, 2020; and 4) right lower extremity sciatica with a 10 percent evaluation from October 20, 2020. The combined disability evaluation for the entire appeal period is 80 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 is not warranted prior to October 25, 2019. The Veteran's DD-214 indicates that their military occupational specialty (MOS) was a tactical aircraft maintenance technician for over 12 years, and that they had extensive training in that field. VA education records note that following service, the Veteran sought a higher education in data processing. In a November 1982 statement, the Veteran reported that they worked in the construction field following separation from service, and that they were taking community college courses. November 2012 VA treatment records indicate that the Veteran had been unemployed since October 2012, and that they worked as a supervisor for 4 years, in car sales prior to that, sat at a bench from 1984 to 2001, and worked as a mechanic prior to that. August 2014 VA treatment records note that the Veteran was retired, and previously worked as a manager for an auto repair shop. An October 2014 private medical opinion stated that the Veteran did odd jobs for their spouse's company. A January 2017 VA examination noted that the Veteran previously trained astronauts at NASA, worked at an aircraft instrument company, and worked as a mechanic. The examiner stated that the Veteran was not currently employed and did odd jobs such as handy man work and painting. August 2017, September 2018, and February 2019 VA treatment records note the Veteran's occupation as a car salesman. January and March 2018 and June 2020 VA treatment records indicate their occupation as the owner of a property management company. On the August 2020 TDIU application submitted by the Veteran's representative, the Veteran was reported working as a technician from 2009 to 2011, and in management at an automotive dealer from 2011 to October 2015. A September 2020 VA examination indicated that the Veteran worked for NASA until 1990, in the aircraft industry for the next 11 years, at an auto repair shop for 4 years, sold tractors, and had not worked for a major employer since 2010. On a June 2021 TDIU application submitted by the Veteran's representative, the Veteran was reported working as a technician from 2005 to 2006, and in management at an automotive dealer from 2008 until February 2013. In statements accompanying the June 2021 TDIU application, the Veteran and their spouse reported that the Veteran stopped working in auto sales due to anger issues in 2013. They explained that they bought a rental property in 2012, and that while their spouse handles the day-to-day operations, the Veteran worked unpaid essentially as a maintenance supervisor, from 0 to 15 hours a week arranging for contractors to do maintenance and repairs to the building. The Board notes that while the Veteran's reported employment history has varied over the years, the Veteran did submit an income history from the Social Security Administration confirming that the Veteran has not had any income since 2013. 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). Although recent VA treatment records note the Veteran's occupation in car sales, given the Veteran's statements, and the SSA income records, the Board finds it likely that the medical providers were merely referencing the Veteran's employment history. Regarding the Veteran assisting their spouse in running the property management company, again, given the Veteran's statements and the SSA income records, the Board finds that this work is not substantially gainful employment. Accordingly, the Board will proceed an analysis of the functional impact that the service-connected disabilities have on the Veteran's employability. At the November 2016 VA back examination, the examiner found that the back disability did not have a functional impact on the Veteran's employability. A January 2017 VA examination for mental disorders found no diagnosis, and as a result did not address any occupational or social impairment. However, as noted in the April 2019 Board decision, the examiner did not address a previous October 2014 diagnosis of a mood disorder. Further, a March 2018 private medical opinion noted that it is not unusual for someone with a mood disorder to "put on a good front" and deny symptoms, and stated that the mood disorder was caused by the service-connected back disability. Based on this private medical opinion, the Board granted service connection for a depressive disorder. In a February 2017 statement, the Veteran's spouse reported that for more than a year, the Veteran had lacked motivation, and had issues with disturbed concentration due to pain and side effects from pain medication. They asserted that the Veteran cannot do yard work or help with household chores due to the back pain, and due to the side effects of the medication, their memory has suffered, with difficulty remembering friends' names or dates and plans, and completing simple tasks like going to the store to pick something up. During the October 2019 VA back examination, the examiner noted that the Veteran cannot stand for over 10 minutes, drive for prolonged periods, or sit in the same position for more than an hour, and that the pain intensifies with movement. During a September 2020 VA mental health examination, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Symptoms were indicated to include depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran was cleanly and casually dressed and adequately groomed, presented with good eye contact, clear speech, goal-directed thought process, depressed mood, and a mood-congruent affect. The Veteran denied any psychotic symptoms and any current suicidal ideation or history thereof. During the October 2020 VA back examination, the examiner noted that the Veteran is unable to stand, sit, or walk for long periods of times, unable to bend over, and cannot sleep on their back for prolonged periods. On the corresponding peripheral nerves examination, functional impact was noted as an inability to sit, stand, or walk for long periods of time. On the October 2020 TDIU application, the Veteran reported that they left their prior job due to disability. In the statement accompanying the June 2021 TDIU application, the Veteran's spouse asserted that the Veteran is unable to maintain full time work due to limited mobility and pain. The Veteran reported that they stopped working in auto sales due to their anger issues, and even in their limited role in property management, they frequently argue with tenants and contractors, to the point that the police have been called on them twice, once in an argument with a tenant, and a second time with how they interacted with a homeless person one day. Based on the preponderance of the record, the Board finds that entitlement to a TDIU prior to October 2019 is not warranted. Taken as a whole, the Veteran's symptoms do not suggest they were unable to obtain and maintain employment during the relevant period on appeal. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider their level of impairment as one that would preclude employment. The Board has considered the Veteran's lay statements that the service-connected disabilities make it difficult to work, and the Board acknowledges the limitations of these disabilities. While the Veteran is in receipt of a TDIU from October 2019, in this regard, during the relevant period on appeal, the Veteran's service-connected disabilities did not preclude them from securing or following a substantially gainful occupation. Notably, the November 2016 VA examination found that the back disability had no functional impact, and the September 2020 VA examination only found the mood disorder to cause occupational and social impairment with occasional decrease in work efficiency. Although the Veteran and their spouse have reported increasing memory issues, the September 2020 examiner indicated that the Veteran had clear speech, a goal-directed thought process, and no indicated memory loss. Although there was functional impact noted on the October 2020 and October 2021 VA examinations, they remain outside the relevant period on appeal, and only apply to the current TDIU rating. And while they have reported that the Veteran's anger issues make it difficult for the Veteran to work, these were not raised for the first time until June 2021, which is again outside the relevant period on appeal. July 2016 VA treatment records describe the Veteran as pleasant. Given the Veteran's extensive work history in management, there is no indication in the record that prior to October 2019 the Veteran would have been unable to work at a desk job. 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, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation due to their service-connected disabilities prior to October 25, 2019, and the claim for entitlement to a TDIU is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. GALLAGHER Acting 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.