Citation Nr: 21074449 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-24 613 DATE: December 15, 2021 ORDER Entitlement to service connection for headaches is denied. Entitlement to a rating in excess of 40 percent for lumbar spondylitis with degenerative disc disease (DDD) for the period from April 12, 2012, is denied. Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's headaches did not begin during military service and are not causally related to military service, or proximately due to or aggravated by a service-connected lumbar spine disorder. 2. The Veteran did not manifest functional impairment equivalent to ankylosis of the lumbar spine after April 12, 2012. 3. The Veteran is not unable to secure and follow substantially gainful employment in low-skilled occupations involving primarily seated duties due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to higher staged ratings for lumbar spondylitis with DDD from April 12, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239-5243. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1971 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). The Board is aware of a procedural issue that requires clarification. An August 2016 memorandum decision by the United States Court of Appeals for Veterans Claims (Court) found that a March 2011 submission from the Veteran could be liberally construed as a Notice of Disagreement with a July 2010 rating decision granting an initial 20 percent rating for lumbar spondylosis with DDD. At the direction of the Court, the Board remanded the matter in May 2017 to the agency of original jurisdiction (AOJ) for issuance of a Statement of the Case. In May 2020, the AOJ issued a Statement of the Case adjudicating the claim for an evaluation in excess of 20 percent for the lumbar spine disability prior to April 12, 2012 (the date of "April 12, 2012" is when the Veteran filed a disability claim that was construed to encompass a claim for an increased rating for his lumbar spine disability, which is presently before the Board on appeal). Neither the Veteran nor his attorney filed a timely appeal in response to the Statement of the Case. As such, the Board does not have jurisdiction over a claim for a rating in excess of 20 percent prior to April 12, 2012. The Board will limit its consideration herein to a rating in excess of 40 percent from April 12, 2012. See 38 U.S.C. § 7105. The Board notes that some correspondence has referenced an effective date of April 4, 2012, as opposed to April 12, 2012, for the date of an assignment of the 40 percent rating for the lumbar spine disability. Compare Notification Letter, December 2012; BVA Decision, May 2017 with BVA Decision, July 2020. The Board finds that April 12, 2012, is the appropriate effective date because the claim for TDIU was received on that date. In any case, the choice of either effective date does not prejudice the Veteran because disability benefits are paid on the first day of the calendar month after the rating became effective. See 38 C.F.R. § 3.31. The Board most recently remanded these matters in July 2020. The AOJ was asked to obtain a VA examination reflecting the current severity of the Veteran's lumbar disability, an addendum medical opinion regarding the etiology of the Veteran's migraine headaches, and to request that the Veteran submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in connection with his claim for TDIU. The AOJ sent the Veteran and his representative a subsequent development letter asking him to submit a VA Form 21-8940 and other information in July 2020. Neither the Veteran nor his representative responded to the letter or provided the requested information. A VA employee called the Veteran to verify his address in September 2020, and was told that the Veteran was having "issues with mail" at his address. The VA employee verified the Veteran's correct address and resent the letter to both him and his representative. To date, VA has not received a VA Form 21-8940 or the other requested information from the Veteran or his representative. The Board notes that it is ultimately a Veteran's responsibility to provide VA with an effective mailing address and contact information when pursuing a claim for benefits. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Even if the Veteran was having issues with his mail initially, the AOJ later verified his address and resent the letter. There is no indication that the Veteran did not receive the second letter. Moreover, the Veteran's representative was sent copies of the letters, but failed to provide the requested information. Considering the record, the Board finds that the AOJ has substantially complied with the remand directives in this regard, and the Board will proceed without a VA Form 21-8940. The AOJ obtained VA examinations and medical opinions responsive to the remand directives in March 2021. After reviewing the documents, the Board finds that they substantially comply with the prior remand directives. The Board is aware of a point of confusion involving a records request from the Veteran's representative. He asserted that VA had not provided him with copies of VA examinations referenced in an April 2021 Supplemental Statement of the Case. He stated that "in its 2021 SSOC, the VA referenced three exams [the Veteran] underwent for his back and resultant headaches. The VA based its denial on these exams. On June 14, 2021, the VA sent several exams, but it did not send me all of the exams mentioned in the April SSOC. I still need [the Veteran's] 2020 exams." To clarify, the Veteran did not undergo any VA compensation and pension exams in 2020. The April 2021 SSOC refers to "VA treatment records received July 30, 2020, October 8, 2020, and April 1, 2021". These records were provided to the representative in June 2021 (when he received a copy of the entire claims file) and again in October 2021 (when he received all records from 2020 to the present). As such, the Board finds that VA has met its obligations under the Freedom of Information Act and/or Privacy Act. These matters are ready for adjudication. 1. Entitlement to service connection for headaches Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The Veteran has a current diagnosis of tension headaches. See C&P Exam, March 2021. The questions for the Board are (1) whether there exists an event, injury, or disease during service relevant to headaches, and (2) whether there exists a nexus between a current headache condition and the event, injury, or disease during service or between a current headache condition and a service-connected disability. Service treatment records do not show any complaints, symptoms, treatment, or diagnoses of headaches or a headache condition. The separation examination found a normal head and neurological system in December 1971. The Veteran denied having frequent or severe headaches in his report of medical history. The Veteran underwent a VA examination in March 2021. The examiner diagnosed tension headaches and opined that it is less likely than not that they were incurred in or caused by military service. She reasoned that "there are no medical records showing diagnosis, treatment for the tension headache condition or any related headaches condition while veteran was still in service." The examiner further found that it is less likely than not that the headaches are caused or aggravated by a service-connected lumbar spine disability. She reasoned that the lower back and lumbar spine do not affect the head, and that tension headaches commonly have multiple contributing factors and tend to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, stress, and diet. The Veteran's representative submitted arguments in support of the appeal. For example, in a June 2021 appellate brief, he contended, among other things, that the Veteran was diagnosed with headaches in 1971 while still in the service, and that the headaches are proximately due to or aggravated by the service-connected lumbar spine, which causes shooting pains travelling to the neck and lower head. On consideration of the foregoing, the totality of the evidence is against the finding os service connection for headaches, to include on a direct and secondary basis. The March 2021 VA examiner opined that it is less likely than not that headaches had onset during or are causally related to service, or are caused or aggravated by a service-connected lumbar spine disorder. She reviewed the claims file and provided a persuasive opinion based on the medical evidence and her professional expertise. Her findings are entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The lay statements from the Veteran and his representative were considered. As to secondary service connection, the ability to opine as to a nexus between a service-connected lumbar spine disability and tension headaches requires specialized medical knowledge of human anatomy and the neurological system that is beyond lay capacity. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board affords higher probative weight to the competent medical evidence. Regarding direct service connection, the Board notes that the Veteran explicitly denied having a history of headaches at separation from service. Service treatment records also fail to document reports of headaches. The absence of complaints of headaches is probative as the Veteran is shown to have sought out treatment for other conditions while in service. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may properly consider internal consistency and consistency with other evidence when determining the credibility of lay evidence); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than lay history as reported by a Veteran). No explanation has been provided as to why the Veteran would seek medical care for some conditions and not others. Therefore, to the extent that the Veteran asserts that his headaches began during military service, the Board finds that such statements lack credibility and are not entitled to probative weight. The representative's assertions that headaches were diagnosed in 1971 are contradicted by the medical evidence, and are not entitled to probative weight. In sum, the most probative evidence does not support the claim of service connection for headaches. The appeal is denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt rule is not applicable based on pure speculation or remote possibility). 2. Entitlement to a rating in excess of 40 percent for lumbar spine Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. §§ 4.40, 4.45 apply when considering whether limitation of motion of a joint has resulted in the functional equivalence of joint ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing the new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71a. Under such criteria, a 40 percent rating is warranted for limitation of 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated 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." 38 C.F.R. § 4.71a, Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Under the formula for rating intervertebral disc syndrome (IVDS), a 10 percent disability rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 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 is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. In the aforementioned revision, Diagnostic Code 5242 was designated for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5243 was designated for IVDS where there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, the disability should be evaluated under Diagnostic Code 5242. It is again noted that the effective date of this revised criteria may not be applied prior to February 7, 2021. Moreover, regardless of any change to the rating criteria, there is no evidence of incapacitating episodes with prescribed bed rest to warrant application of the formula for rating IVDS. Therefore, the Board will evaluate the Veteran's lumbar spine disability under the general rating formula. The February 7, 2021 revision made no changes to the general rating formula. The Veteran's lumbar spine disability is rated as 40 percent from April 12, 2012. See Rating Decision Codesheet, January 2020. The question for the Board is whether a higher rating may be assigned during the rating period. After careful review of the record, the Board finds that the evidence does not support functional impairment to the extent that a higher rating may be assigned for the lumbar spine disability. The Veteran underwent VA examinations in September 2012, August 2016, and March 2021. The September 2012 VA examiner documented forward flexion limited to 15 degrees, which meets the threshold for a 40 percent rating. 38 C.F.R. § 4.71a, DC 5239-5243. The AOJ assigned a 40 percent rating from April 12, 2012, the date an application for TDIU and additional benefits was received by VA. 38 C.F.R. § 3.400. The record does not reflect any evidence suggestive of ankylosis or its functional equivalent to the extent that a rating in excess of 40 percent is appropriate at any time thereafter during the rating period. Notably, when he was examined in March 2021, ankylosis or the functional equivalent was not shown. The examiner specified that the functional impact of the Veteran's back disability with related pain resulted in stiffness, limited motion (as opposed to the absence of motion), difficulty in lifting heavy objects, bending, and prolonged sitting or standing. The Board has considered reports of functional impairment during flare-ups and after repeated use over time. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald. 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. In short, since April 12, 2012, the 40 percent rating assigned for the Veteran's low back disability is the maximum that may be assigned for limited motion under the rating schedule. No higher rating is available for flare-ups from that time. The Board has considered whether a higher rating could be assigned under the criteria for IVDS. However, the record does not show functional impairment including incapacitating IVDS episodes with bed rest prescribed by a physician and treatment by a physician to the extent that a higher rating is applicable. The Board notes that the rating schedule allows for the assignment of separate compensable ratings for neurological abnormalities associated with the spine disorders. In that regard, a January 2020 rating decision assigned separate 20 percent ratings for sciatica of the right and left lower extremities. The Veteran did not appeal the assigned ratings. The 2021 VA examination did not identify any other neurological deficits to include bowel and/or bladder dysfunction that was associated with the lumbar spine disorder. The Veteran's representative argued that the Veteran should be considered for an extraschedular rating. See 38 C.F.R. § 3.321(b); Appellate Brief, March 2014. He cited reports that the Veteran "requires frequent use of a wheelchair" for his back disorder, and claimed that a 40 percent rating "is not representative of the severe symptoms of his back injury and the effect the injury has on his ability to work." An extraschedular rating may be considered if the results of a three-part inquiry are satisfied. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires the Board to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate." If the Board determines that a claimant's symptoms or their severity are not contemplated by the rating schedule, the second element requires the Board to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Finally, if the first two elements are met, the Board must refer the claim to the Director, Compensation Service, for a determination about whether an extraschedular rating is warranted. The Board finds that a referral for consideration of an extraschedular rating is not warranted in this case. The Veteran's symptoms of back pain with limited motion are not exceptional or unusual and are directly contemplated by the rating schedule. See Long v. Wilkie, 33 Vet. App. 167 (2020). Moreover, although the representative cited to frequent use of a wheelchair as a factor in support of an extraschedular rating, the medical evidence casts doubt as to whether the Veteran required frequent use of a wheelchair due to his lumbar disorder. The Veteran denied using a wheelchair during the March 2021 and August 2016 examinations. At the 2012 examination, he reported that used a wheelchair occasionally when he had problems with balance and pain, but clarified that it was not prescribed by medical personnel. VA treatment records do not show ongoing or frequent use of a wheelchair. Thus, the record does not suggest exceptional or unusual impairment or severity of the lumbar spine disorder to the extent that an extraschedular referral is appropriate. 38 C.F.R. § 4.1. The Veteran's lay statements were considered. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support a higher rating under the facts of this case. In sum, as the record does not suggest functional impairment equivalent to higher ratings, the claim must be denied. 3. Entitlement to a TDIU A TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. VA is responsible for the ultimate decision of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As of January 2020, the Veteran's service-connected disabilities consisted of lumbar spondylitis with degenerative disc disease, rated as 40 percent since April 12, 2012; adjustment disorder with depressed mood, rated as 30 percent since April 4, 2012, sciatica of the right leg, rated as 20 percent from April 12, 2012; and sciatica of the left leg, rated as 20 percent from April 12, 2012. His combined rating is 80 percent from April 12, 2012. See Rating Decision Codesheet, January 2020. He meets the schedular rating criteria for a TDIU from that date. The question for the Board is whether he is unable to secure and follow substantially gainful employment due to his service-connected disabilities. The Veteran's DD Form 214 shows that he was discharged as a trainee before being assigned a military occupational specialty. After service, he worked as a horse walker at a racetrack before ceasing employment in 1999. He has not reported any advanced education or training. The September 2012 VA examiner opined that the Veteran's lumbar disorder should not impact his ability to engage in sedentary employment. An October 2012 VA psychiatric examiner opined that the Veteran's mental health symptoms result in "mild to moderate impairment of his social and occupational functioning" and "are not considered severe enough, by themselves, to render the veteran unable to secure and maintain substantially gainful employment." The August 2016 VA examiner opined that "the current level of severity of the Veteran's back condition is moderate, clinically. There is objective evidence of limited forward bending, pain with motion and dependence upon a cane for ambulation. These findings would prohibit the veteran from maintaining gainful employment in a work environment requiring physicality to include walking for long distances, heavy lifting, pushing/pulling, carrying heavy object, [and] ascending/descending stairs or ladders. To the contrary, the veteran is able to sit without problem and engage in goal directed conversation as was evidenced by his participation in this examination. He should, then, be able to maintain gainful employment in a sedentary work environment requiring a seated position, answering phones, keying, computer use, short distance ambulation within the work area and general office filing, for example." The March 2021 VA examiner found that the Veteran would be limited by "back pain, stiffness, limited range of motion, difficulty with heavy lifting more than 10 lbs., bending, prolonged walking more than 1/8th of a mile or standing for more than 5 minutes." She further found that the Veteran would have difficulty climbing more than one flight of stairs at a time or sitting for "prolonged periods of time." The examiner did not find that the back disability would render the Veteran incapable of pursuing an occupation with primarily-seated duties. The Board finds that the preponderance of the evidence supports that the Veteran is able to secure and follow substantially gainful employment in low-skilled positions with primarily seated duties. In this context, the Board understands "primarily seated duties" to mean tasks which are more often than not performed while seated and "low-skilled" to mean not requiring any advanced education or training. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). This is consistent with the medical evidence and the findings of the examiners, who reached the conclusion that the Veteran would be prevented from physical labor because of his lumbar spine disorder, but not occupations involving primarily seated duties. The March 2021 VA examiner found that the Veteran would have difficulty sitting for "prolonged periods of time." The Board emphasizes that difficulty with prolonged sitting does not necessarily equate to an inability to perform an occupation with primarily seated duties. The preponderance of the evidence is against finding that the Veteran is incapable of working in a substantially gainful occupation with primarily seated duties. For example, in January 2014, the Veteran's primary care clinician recommended that he increase his activity level "as tolerated." In June 2019, the Veteran reported to his VA primary care doctor that he had been gardening in his free time. In June 2020, the Veteran's doctor observed that his gait and station were normal. A normal gait, combined with an ability to perform low intensity seated/kneeling tasks, such as gardening, does not suggest that the Veteran would be unable to perform a primarily seated occupation. The Board has considered the Veteran's educational and occupational history. Although the record does not show an extensive educational or work background, a higher education degree is not a prerequisite for an occupation with primarily seated duties. Pederson v. McDonald, 27 Vet. App. 276, 287 (2015). Thus, the Veteran would not be prohibited from working in low skilled jobs with primarily seated duties such as data entry, dispatching, telemarketing, receptionist, seated assembly work, or similar positions, due to his service-connected disabilities. The Veteran's lay reports have been considered. However, the relevant question for the Board is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether his disabilities affect his ability to work. See Van Hoose, 4 Vet. App. at 364 (a high schedular rating is itself a recognition that service-connected disabilities impede a veterans' occupational performance). The Board acknowledges that the Veteran has been unemployed for a long time and has a limited occupational and educational history. Nevertheless, under the facts of this case, the most probative evidence does not suggest that the Veteran is incapable of securing and following substantially gainful employment in a low skilled occupation with primarily seated duties. In sum, as the preponderance of the evidence is against the claim of TDIU, the appeal is denied. See 38 U.S.C. § 5107(a). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate 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.