Citation Nr: 21006486 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-36 362 DATE: February 4, 2021 ORDER Entitlement to an increased disability rating of 30 percent, but no higher, for cervical spine degenerative disc disease (DDD) is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased disability rating of 40 percent, but no higher, for lumbar spine degenerative joint disease (DJD) is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. Throughout the entire appeal period, the symptoms of the Veteran’s cervical spine DDD more nearly approximated forward flexion of 15 degrees or less when considering flare-ups, but not ankylosis or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 2. Throughout the entire appeal period, the symptoms of the Veteran’s lumbar spine DJD more nearly approximated forward flexion of 30 degrees or less when considering flare-ups, but not ankylosis or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 3. The Veteran’s service-connected disabilities preclude all substantially gainful employment for which her education and occupational experience would otherwise qualify her. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 30 percent for cervical spine DDD are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an increased disability rating of 40 percent for lumbar spine DJD are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, DC 5242. 3. The criteria for a TDIU due to service-connected disabilities are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to December 1975, June 1984 to August 1984, January 1988 to April 1988, May 2001 to April 2002, and November 2002 to January 2005. These matters come to the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, assigned 10 percent evaluations for service-connected cervical spine DDD and lumbar spine DJD. The Veteran timely appealed these matters. In November 2018, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2019 and October 2020, the matters were remanded by the Board for further development. As explained below, in November 2020, the Agency of Original Jurisdiction (AOJ) took appropriate action in the form of a notification letter in response to the Veteran’s August 2011 statement alleging the timeliness of her NOD with the May 2010 rating decision. Therefore, the AOJ substantially complied with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of the timeliness of the NOD will be discussed further below. In June 2020, the AOJ, among other things, increased the Veteran’s disability ratings for service-connected cervical spine DDD and lumbar spine DJD to 20 percent each, both effective November 25, 2019, thereby creating staged ratings. As the Veteran has not indicated satisfaction with these disability ratings, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). As a final preliminary matter, the Veteran has alleged an inability to retain employment due to her service-connected disabilities. The issue of entitlement to a TDIU is part of an increased disability rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of entitlement to a TDIU is currently before the Board. Timeliness of NOD The Veteran has contended throughout the appeal period, to include in her August 2011 VA Form 21-4138, that she did not receive the May 2010 rating decision within the one-year appeal period, therefore, the August 2011 statement should be considered a timely NOD with the May 2010 rating decision. A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a) (2018). If an NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2018). An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). In a May 2010 rating decision, the AOJ granted the claims of service connection for cervical spine DDD and lumbar spine DJD and assigned initial noncompensable evaluations and provided the Veteran with notice of this denial in a May 28, 2010 letter. This notice letter apprised the Veteran of her procedural and appellate rights by way of an enclosed VA Form 4107 (“Your Rights to Appeal Our Decision”). The Veteran was notified she had one year from the date of the notice letter to appeal the May 2010 decision of the AOJ (until May 28, 2011). The May 28, 2011 notice letter for the rating decision was sent to the Veteran’s address of record at the time and was not returned as undeliverable. On August 9, 2011, the Veteran submitted a Statement in Support of Claim (VA Form 21-4138) disagreeing with the assignment of initial noncompensable evaluations for service-connected cervical spine DDD and lumbar spine DJD. Although the VA Form 21-4138 was submitted more than a year after the May 2010 rating decision awarding service connection and granting the initial evaluations, the Veteran requested this statement be considered a timely NOD, contending she never received notification of the May 2010 rating decision. However, the AOJ interpreted the August 2011 VA Form 21-4138 as a claim for increased disability ratings for the Veteran’s back and neck disabilities and found in an October 2011 letter that the NOD was untimely as it was not submitted within one year of the May 2010 rating decision. The Veteran did not appeal the October 2011 decision. Thus, that issue is not before the Board. The AOJ confirmed the untimeliness of the August 2011 NOD in November 2019 and November 2020 letters, which was in response to Board remands that indicated that the AOJ should take appropriate action with regard to the August 2011 statement, but the Board’s remand instructions were based on the erroneous assumption that the AOJ had not adjudicated the issue of the timeliness of the NOD. As the AOJ had adjudicated that issue, in its October 2011 decision letter, and the Veteran did not appeal, the issue of the timeliness of the NOD is not before the Board at this time. The claims for higher disability ratings for cervical spine DDD and lumbar spine DJD will therefore be adjudicated as claims for increased disability ratings, not initial disability ratings. Disability ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § Part 4. Where entitlement to compensation has already 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 (1994). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint’s functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016).    In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.   Entitlement to increased disability ratings for cervical spine DDD and lumbar spine DJD The Veteran is currently in receipt of 10 percent evaluations for cervical spine DDD and lumbar spine DJD under DC 5242, both effective August 5, 2011, and 20 percent evaluations for both disabilities, both effective November 25, 2019. Disabilities rated under DC 5242 are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula).  38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less. The only higher schedular ratings under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine.  Id. These ratings 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. Id. Note (2) provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees, and left and right lateral rotation of the cervical spine are both zero to 80 degrees. Id. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.” DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1.  During a December 2012 VA examination, the Veteran’s diagnosis of cervical DJD was confirmed. The Veteran reported flare-ups of difficulty bending and turning her head. Range of motion tests were the following: forward flexion, extension, right lateral flexion, and left lateral flexion were all 45 degrees or greater with objective evidence of painful motion at 45 degrees or greater, and right and left lateral rotation was 80 degrees or greater with objective evidence of painful motion at 80 degrees or greater. The Veteran was able to perform repetitive use testing with three repetitions. Range of motion post test was 45 degrees or greater for forward flexion, right lateral flexion, left lateral flexion, and 80 degrees or greater for right and left lateral rotation. The Veteran did not have additional limitation in range of motion of the cervical spine following repetitive use testing. Muscle strength and reflex testing was normal. The Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. The examiner noted that the Veteran’s cervical spine condition impacted the Veteran’s ability to work in that the Veteran experienced difficulty turning her head and bending. During a December 2012 VA examination, the Veteran’s diagnosis of lumbar spine joint disease was confirmed. The Veteran reported flare-ups of difficulty sleeping, sitting, standing, walking, and driving for an extending period of time. Range of motion tests were the following: forward flexion was 90 degrees or greater with objective evidence of painful motion at 90 degrees or greater, and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were all 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater. The Veteran was able to perform repetitive use testing with three repetitions. Range of motion post-test was 90 degrees or greater for forward flexion, and 30 degrees or greater for extension, right and left lateral rotation, and right and left lateral flexion. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. Muscle strength and reflex testing was normal. The Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. The examiner noted that the Veteran’s thoracolumbar spine condition impacted the Veteran’s ability to work in that the Veteran experienced difficulty sleeping, sitting, standing, walking, and driving for an extending period of time. During her November 2018 Board hearing, the Veteran reported she experienced a lot of pain due to her neck and back disabilities at the time of the December 2012 VA examinations for those disabilities. As far back as 2009, she was significantly restricted in her ability to move her neck and back when she experienced a flare-up or had a bad day. During a December 2019 VA back examination, the Veteran did not report flare-ups or functional loss or impairment of the thoracolumbar spine. She reported that the disability is exacerbated by working out and walking for long periods of time. Range of motion tests were the following: forward flexion was 0 to 90 degrees, extension, right lateral flexion, left lateral flexion, and right lateral rotation were all 0 to 30 degrees, and left lateral rotation was 0 to 25 degrees. Pain was noted on examination on rest/non-movement. There was no evidence of pain with weight-bearing. Range of motion did not contribute to functional loss. The Veteran was able to perform repetitive use testing of three repetitions with additional loss of function or range of motion. Range of motion after three repetitions was 0 to 60 degrees for forward flexion, extension, left lateral flexion, right lateral flexion, and left lateral rotation were all 0 to 25 degrees, and right lateral rotation was 0 to 30 degrees. Pain caused functional loss after repetitive use. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, and pain caused functional loss with repeated use over time. This functional loss was described in terms of range of motion as 0 to 50 degrees for forward flexion, and extension, left lateral flexion, right lateral flexion, and left lateral rotation, and right lateral rotation were all 0 to 20 degrees. The examiner noted that the Veteran’s thoracolumbar spine condition impacted the Veteran’s ability to work in that the Veteran experienced pain and tenderness while seeing patients and had to take time off work. During a December 2019 VA neck examination, the Veteran did not report flare-ups or functional loss or impairment of the cervical spine. Range of motion tests were the following: forward flexion was 0 to 35 degrees, extension was 0 to 45 degrees, right and left lateral flexion was 0 to 40 degrees, right lateral rotation was 0 to 75 degrees, and left lateral rotation was 0 to 55 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on examination on rest/non-movement. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with three repetitions with additional loss of function or range of motion. Range of motion after three repetitions was 0 to 40 degrees for forward flexion, 0 to 35 degrees extension, 0 to 30 degrees left lateral flexion, 0 to 35 degrees right lateral flexion, 0 to 35 degrees left lateral rotation, and right lateral rotation was 0 to 40 degrees. Pain caused functional loss after repetitive use. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, and pain caused functional loss with repeated use over time. This functional loss was described in terms of range of motion as 0 to 30 degrees forward flexion, 0 to 30 degrees extension, 0 to 20 degrees left lateral flexion, 0 to 25 degrees right lateral flexion, 0 to 30 degrees left lateral rotation, and right lateral rotation 0 to 30 degrees. The examiner noted that the Veteran’s cervical spine condition impacted the Veteran’s ability to work in that the Veteran experienced pain and tenderness while seeing patients and had to take time off work. For the following reasons, the Veteran’s cervical spine DDD and lumbar spine DJD symptoms during the entire appeal period more nearly approximated the criteria for, respectively, increased 30 percent and 40 percent disability ratings, but no higher. The Veteran has reported that she experiences significant flare-ups with increased severity of pain symptoms and difficulty turning her head, bending, sleeping, sitting, standing, walking, and driving for an extending period of time. In this regard, the Veteran testified during her November 2018 Board hearing that as far back as 2009, when she experienced a flare-up or had a bad day, she was significantly restricted in her ability to move her neck and back. The Veteran is competent to report these neck and back symptoms, particularly as she is a chiropractor, and there is nothing in the evidence of record to explicitly contradict her testimony. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, her testimony of neck and back pain symptoms is competent and credible. Although range of motion testing conducted in the December 2012 and December 2019 VA examinations did not reflect flexion of the thoracolumbar spine limited to 30 degrees or less or flexion of the cervical spine limited to 15 degrees of less, the Veteran has consistently reported significant and frequent flare-ups due to her neck and back pain symptoms. The range of motion findings combined with the other evidence of record, including the Veteran’s description of her flare-ups, reflect that the symptoms of the Veteran’s cervical and lumbar spine disabilities more nearly approximate forward flexion of 15 degrees or less and forward flexion of 30 degrees or less throughout the appeal period. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran’s disability] first manifested”). Neither the VA or private treatment notes, VA examination reports, or the Veteran’s statements indicate that there was ankylosis of the entire thoracolumbar or cervical spine or the entire spine during the entire appeal period. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. Moreover, 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, and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp 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 addition, the Veteran does not contend, and the evidence of record does not reflect, that she has suffered from incapacitating episodes due to IVDS throughout the pendency of the appeal period. For the foregoing reasons, increased disability ratings of 30 and 40 percent, respectively, but no higher, for the Veteran’s service-connected cervical spine DDD and lumbar spine DJD, are warranted. As the preponderance of the evidence reflects the symptoms of the Veteran’s cervical spine DDD and lumbar spine DJD do not more nearly approximate the criteria for disability ratings higher than 30 and 40 percent, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3 The Board has considered the Veteran’s claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU The Veteran contends that her service-connected disabilities, to include her lumbar and cervical spine disabilities, render her unemployable and that her self-employment as a chiropractor amounted to a protected environment. The Veteran additionally reported in her April 2020 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that she reduced her weekly hours to 29 to 32 hours a week and received daily treatment in her office to increase function and reduce pain caused by her cervical and lumbar spine disabilities. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.   Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Court addressed the meaning of employment in a protected work environment in Cantrell v. Shulkin, 28 Vet. App. 382, (2017). The Court found that the plain language of 38 C.F.R. § 4.16(a) does not expressly define employment in a protected environment and that it was unable to defer to the Secretary’s definition, finding that “the Secretary ha[d] refused to proffer any definition of employment in a protected environment for the Court to analyze.” Id. at 390. (noting that the Secretary had argued that VA has purposely chosen not to define employment in a protected environment, leaving it to the discretion of the factfinder on [a] case by-case basis). Absent an articulated standard for employment in a protected environment, the Court concluded that it was unable to effectively review the Board’s decision. Id. at 392. The central inquiry in a claim for entitlement to a TDIU is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).   The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and 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.  38 C.F.R. § 4.16(a).   The Veteran is currently in receipt of service connection for posttraumatic stress disorder, rated 70 percent disabling from February 10, 2012; residuals of left calcaneus fracture, rated 30 percent disabling from September 24, 2009; cervical spine DDD, rated 30 percent disabling from August 5, 2011; lumbar spine DJD, rated 40 percent disabling from August 5, 2011; right upper extremity radiculopathy, rated 20 percent disabling from November 25, 2019; left upper extremity radiculopathy, rated 20 disabling from November 25, 2019; right knee chondromalacia patella, rated 10 percent from August 5, 2011; deviated nasal septum, rated 10 percent disabling from August 5, 2011; left lower extremity radiculopathy, rated 10 percent disabling from August 5, 2011; and noncompensable right knee scar. As the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined disability rating is 70 percent or higher, she meets the schedular criteria for a TDIU.  The remaining question is whether the Veteran’s service-connected disabilities preclude gainful employment for which her education and occupational experience may otherwise qualify her.   The term “unable to secure and follow a substantially gainful occupation” is defined as having two components: one economic and one non-economic.  The economic component means 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.  The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue.  Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).   The Veteran has a college degree and completed her training as a Doctor of Chiropractic in December 1994, as indicated in her April 2020 VA Form 21-8940. She testified during her November 2018 Board hearing that she has been self-employed as a chiropractor for the last 14 years. In December 2012, a VA examiner noted that the Veteran’s thoracolumbar and cervical spine conditions impacted the Veteran’s ability to work in that the Veteran experienced difficulty turning her head, bending, sleeping, sitting, standing, walking, and driving for an extending period of time. In December 2019, a VA examiner noted that the Veteran’s thoracolumbar and cervical spine conditions impacted the Veteran’s ability to work in that the Veteran experienced pain and tenderness while seeing patients and had to take a day off work once a week. In her April 2020 VA Form 21-8940, the Veteran reported that she is unable to stand for long periods of time and that she experienced spinal and muscle fatigue while working. She also noted she would not be able to get hired by an employer as a result of her disabilities, to include her symptoms of spinal tightness, pain, and spasms. For the following reasons, entitlement to a TDIU is warranted.   While the December 2019 opinion indicates that the Veteran is able to perform some gainful employment despite her service-connected disabilities, medical examiners are only responsible for providing a full description of the effects of disability upon a Veteran’s ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Applicable regulations place the ultimate responsibility as to whether entitlement to a TDIU is warranted on the VA adjudicator, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  In addition, whether a Veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence.  Id. (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”).   As noted above, marginal employment may be held to exist, on a facts-found basis, including in a protected environment, when earned annual income exceeds the poverty threshold. Here, the Veteran set her own work hours and took a day off every week because of the symptoms caused by her service-connected disabilities. She also was able to receive daily treatment for her disabilities in her work office. Thus, the Board finds the Veteran’s self-employment qualifies as employment in a protected environment and is therefore marginal. For the foregoing reasons, the Veteran’s service-connected disabilities prevent her from securing and following substantially gainful employment consistent with her education and occupational experience.  Entitlement to a TDIU is therefore warranted.   The Veteran is in receipt of a 100 percent combined disability rating for a portion of the appeal period, specifically from November 25, 2019. The Board will allow the RO to assign the effective date for the TDIU in the first instance, as well as to determine whether the TDIU has been rendered moot by any portion of the appeal period for which the Veteran is in receipt of a 100 percent rating. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.