Citation Nr: 21007052 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-16 253 DATE: February 8, 2021 ORDER An initial rating in excess of 50 percent for the service-connected adjustment disorder with mixed emotional features, insomnia, major depression, posttraumatic stress disorder (PTSD), and alcohol use disorder is denied. An initial rating in excess of 10 percent for the service-connected residuals of a left knee injury is denied. An initial rating in excess of 10 percent for the service-connected postoperative degenerative changes of the right knee is denied. A separate initial compensable rating of 10 percent, but no higher, for the service-connected post-operative degenerative changes of the right knee based upon instability is granted, subject to the terms and conditions regarding awards of monetary benefits. An initial rating in excess of 10 percent for lumbar strain is denied. A total disability rating for individual unemployability due to service-connected disability (TDIU) is granted from July 2019, but no earlier, subject to the terms and conditions regarding awards of monetary benefits. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran’s service-connected adjustment disorder with mixed emotional features, insomnia, major depression, PTSD, and alcohol abuse disorder manifested by occupational and social impairment with no worse than reduced reliability and productivity. 2. At no time during the appeal period has the Veteran’s service-connected left knee disability resulted in flexion functionally limited to 60 degrees or less; extension functionally limited to 5 degrees or more; ankylosis; slight recurrent subluxation or slight lateral instability; dislocated meniscus causing locking; an impairment of the tibia and fibula; or genu recurvatum. 3. At no time during the appeal period has the Veteran’s service-connected right knee disability resulted in flexion functionally limited to 60 degrees or less; extension functionally limited to 5 degrees or more; ankylosis; dislocated meniscus causing locking; an impairment of the tibia and fibula; or genu recurvatum. 4. For the period on appeal, the Veteran’s service-connected right knee disability has been manifested by no more than slight instability. 5. At no time during the appeal period has the Veteran’s service-connected lumbar strain resulted in limitation of forward flexion of his thoracolumbar spine less than 60 degrees; a combined limitation of motion of his thoracolumbar spine less than 120 degrees; muscle spasm, guarding or localized tenderness severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reverse lordosis, abnormal kyphosis, prescribed bedrest to treat incapacitating episodes of intervertebral disc syndrome (IVDS), or even IVDS. 6. The Veteran’s service-connected disabilities preclude substantially gainful employment from July 2019. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for the service-connected adjustment disorder with mixed emotional features, insomnia, major depression, PTSD, and alcohol abuse disorder have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9440. 2. The criteria for an initial rating in excess of 10 percent for the service-connected left knee injury have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5256-5263. 3. The criteria for an initial rating in excess of 10 percent for the service-connected postoperative degenerative changes of the right knee have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5256, 5258-5263. 4. The criteria for an initial rating of 10 percent, but no higher, for a right knee disability based on instability have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. 5. The criteria for an initial rating in excess of 10 percent for the service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 6. Resolving doubt in the Veteran’s favor, the criteria for entitlement to a TDIU due to service-connected disability from July 2019, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1991 to August 2011. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision which, in pertinent part, granted service connection for the Veteran’s psychiatric disability, left knee disability, right knee disability, and lumbar strain, all effective September 1, 2011. During the current appeal, and specifically in June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2019, the Board remanded the increased rating claims on appeal—as well as the issue of entitlement to a TDIU (which the Board determined had been raised by the record and was thus part and parcel of the higher rating claims on appeal) for further evidentiary development. On remand, and specifically in a September 2020 rating decision, the agency of original jurisdiction (AOJ) granted a TDIU, effective from October 1, 2019. As this award does not include the entire appeal period, the issue of entitlement to a TDIU prior to October 1, 2019 remains on appeal. Increased Ratings Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "stage" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Initial rating in excess of 50 percent for the service-connected adjustment disorder with mixed emotional features, insomnia, major depression, PTSD, and alcohol abuse disorder The Veteran contends that he is entitled to a higher initial disability rating for his psychiatric disability, which is currently rated at 50 percent under DC 9440. 38 C.F.R. § 4.130. Psychiatric disabilities, however diagnosed, are rated under the General Rating Formula for Mental Disorders (General Rating Formula), and the criteria under this formula shall be considered no matter which diagnostic code is assigned. The psychiatric symptoms listed in the rating criteria do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Rating Formula, a 50 percent rating is assigned when the Veteran exhibits occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9440. A 70 percent rating is assigned when the Veteran exhibits occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Unfortunately, the Veteran’s psychiatric symptoms do not warrant an initial rating in excess of 50 percent at any time during the appeal period. While the evidence clearly shows that he continues to struggle with psychiatric symptoms such as suspiciousness, chronic sleep impairment, anxiety, and depressed mood throughout the appeal period, the evidence does not reflect that his psychiatric disability has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In February 2018, a former landlord submitted a buddy statement on behalf of the Veteran. She stated that he was previously her tenant, but she had to ask him to leave due to his inconsistent financial history, inability to sleep at night, and unsafe/unsure behavior. She reported observing the Veteran frequently walking around the property checking doors and talking about wartime in his sleep. She also reported finding him sleeping outside on the deck recently. In April 2018, the Veteran was afforded a VA examination to assess his psychiatric disability. The Veteran reported that he experiences depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and has difficulty in establishing and maintaining effective work and social relationships. He also stated that he drinks alcohol every day. He denied experiencing any suicidal ideation, homicidal ideation, or hallucinations. Further, he denied any history of psychiatric hospitalizations or self-injurious behavior. At the time of the examination, he reported living with his mother and his nephew. He also stated that he had a girlfriend, although he characterized the relationship as “off and on” since 2013. He reported periods of unemployment due to problems with his knees but stated he was presently working part time. Additionally, he told the examiner he had taken courses in 2012-2013 and successfully earned certificates in auto mechanics and welding. The examiner observed that the Veteran was well-groomed, made good eye contact, and was pleasant and cooperative. His mood appeared mildly depressed and anxious, his affect was full, and his thoughts were coherent and goal directed. He was alert and fully oriented, with good attention and concentration, his memory was grossly intact, and his insight and judgment were fair. Based on the examination, the examiner found that he 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. Then, in July 2018, the Veteran was afforded another VA examination. At that time, he reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, irritability, and alcohol abuse. Further, he reported he has difficulty maintaining employment, he avoids crowds, and has no social relationships. The examiner observed that he was alert, oriented, well nourished, had fair memory, and was not assaultive. The examiner also noted he was capable of managing his financial affairs. Based on this examination, the examiner found that the Veteran has occupational and social impairment with reduced reliability and productivity. At the June 2019 hearing, the Veteran testified about his psychiatric disability. He testified that he drinks heavily and spends most of his time alone. He described his relationships as horrible and stated he felt socially isolated. He also reported that he has trouble holding a job due to his hypervigilance, as he has trouble with closed doors and being in confined spaces. A review of the notes from the Veteran’s VA mental health visits during the appeal period reveals that he is consistently alert; oriented to person, place, and time; cooperative, and appropriately dressed and groomed at these visits. The visit notes also indicate that his thought processes are linear, coherent, and organized; he consistently denied hallucinations and both suicidal and homicidal ideation; and his memory, concentration, abstract reasoning, judgment, impulse control, and insight are intact. Also, he maintains full independence regarding all activities of daily living. Based on this evidence, the Board finds that at no time during the appeal period has the Veteran’s psychiatric disability met the criteria for a rating in excess of 50 percent. The evidence has consistently shown that his psychiatric disability is characterized by symptoms that are productive of occupational and social impairment with reduced reliability and productivity. During the appeal period, he has maintained relationships with some family members and attended school, earning auto mechanics and welding certificates. He has experienced difficulty in maintaining employment, although he attributes this in part to his knee disabilities. Further, there have been no symptoms indicating deficiencies in his judgment or thinking. He has been found to be consistently alert, oriented, and cooperative with linear, coherent, and organized thought processes. At no time has an examiner observed the Veteran as having gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Likewise, he has consistently denied suicidal or homicidal ideations, and no examiner has described an inability to perform activities of daily living such as maintain minimal personal hygiene. On the contrary, each examiner specifically reported that the Veteran maintained full independence regarding all activities of daily living, presented at the examination appropriately groomed and dressed, and was oriented to time, place and person. In reaching this decision, the Board does not dismiss or marginalize the effect that the Veteran’s psychiatric disability has on his life. The Veteran’s statements paint a picture of his day-to-day struggles with his psychiatric disability which often manifested as depressed mood, hypervigilance, anxiety, irritability, and chronic sleep impairment. However, the Board finds that these symptoms are adequately compensated by the current 50 percent rating. Given the above, the Board finds that the Veteran’s psychiatric disability has resulted in occupational and social impairment with reduced reliability and productivity. Thus, an initial rating in excess of 50 percent is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initial rating in excess of 10 percent for the service-connected residuals of a left knee injury Initial rating in excess of 10 percent for the service-connected postoperative degenerative changes of the right knee Initial separate compensable rating for the service-connected right knee disability based upon instability The Veteran contends that higher disability ratings are warranted for his left and right knee disabilities. His left knee disability is currently rated under 38 C.F.R. § 4.71a, DC 5260, and his right knee disability is currently rated under 38 C.F.R. § 4.71a, DC 5259-5010. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating; the additional DC is shown after the hyphen. 38 C.F.R. § 4.27. DC 5010 refers to “arthritis due to trauma,” and states that traumatic arthritis is to be rated under DC 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that arthritis is generally rated based on limitation of motion of the joint. However, if limitation of motion of the knee is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be assigned. See 38 C.F.R. § 4.71a, DC 5003. Under DC 5260, a noncompensable rating is warranted for flexion of a knee limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limited motion of a knee disability can also be rated under DC 5261. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a noncompensable rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. The standardized description of joint measurements is provided in Plate II, pursuant to 38 C.F.R. § 4.71. Normal extension and flexion of the knee ranges from 0 to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but separate compensable pathology must be shown. VAOGCPREC 9-2004. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Joint instability is rated under DC 5257. A 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Other DCs relating to the knees are DC 5256 for ankylosis; DC 5262 for impairment of tibia and fibula; DC 5263 for genu recurvatum; and DC 5258 for dislocated meniscus with frequent locking, pain, and effusion. Those conditions are not shown on examination or in the medical evidence of record during the appeal period, and the Board finds that application of these DCs is not warranted. 38 C.F.R. § 4.71a. Also, DC 5259 rates impairment resulting from symptomatic removal of semilunar cartilage (meniscus) relates to the knees. However, the Veteran is already rated at 10 percent under DC 5259 for his right knee, which is the maximum rating available, and there is no medical evidence of, nor does he allege to have, a meniscus condition of his left knee. Throughout the appeal period, the Veteran's right knee symptoms have been rated 10 percent under DC 5259-5010 for postoperative degenerative changes related to his meniscus condition, and his left knee symptoms have been rated at 10 percent under DC 5260. However, the August 2013 rating decision which granted the initial rating of 10 percent for his left knee disability explained that the Veteran did not display compensable limitation of flexion or extension. Thus, the 10 percent rating under DC 5260 was assigned pursuant to 38 C.F.R. § 4.59, which allows the minimum compensable rating for a particular joint to be assigned (10 percent for a knee) when painful motion of the joint is shown. In July 2018, the Veteran was afforded a VA examination. The examiner noted that the Veteran was diagnosed with a left knee strain and a right knee meniscal tear, with postoperative degenerative changes. The Veteran reported experiencing grinding, popping, and swelling in his right knee and swelling, popping, and aching pain in his left knee. He also reported experiencing functional impairment of both knees which he described as limiting running and stair climbing. Range of motion testing was performed and found to be normal in both knees. However, the Veteran did report experiencing pain with both flexion and extension, localized tenderness and pain upon palpation, and pain when weight bearing in both knees. The examiner noted this pain on examination as causing functional loss and found objective evidence of crepitus in both knees. The Veteran performed repetitive-use testing, and there was no additional loss of function or range of motion after three repetitions in either knee. He was not examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran also reported experiencing flare ups in both knees, which he described as swelling, grinding, and his knee “giving out” for his right knee and as popping and a pulling sensation for his left knee. The examination was not conducted during a flare up, but the examination was medically consistent with the Veteran’s statements describing functional loss during flare ups. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups. Additional factors contributing to disability in both knees included weakened movement due to muscle injury or peripheral nerves injury; swelling; instability of station; disturbance of locomotion; interference with standing; and constant pain. The Veteran did not have muscle atrophy or ankylosis in either knee. Muscle strength tests all revealed active movement against some resistance. The examiner noted that the Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was performed, and results were normal for both knees. The examiner found that the Veteran had not ever had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment in either knee. His known right knee meniscal condition was noted, but he denied a meniscal condition in his left knee. He reported using hinged knee braces bilaterally for constant knee pain and a cane occasionally due to his knee and back pain. His bilateral knee disabilities functionally impacted him in that he has limited duration of time standing due to pain and swelling. There was objective evidence of pain in both knees on passive range of motion testing and when used in non-weight bearing. The examiner noted that he depends on hinged knee braces to ambulate. At the June 2019 hearing, the Veteran provided testimony about his left and right knee disabilities. He explained that his right knee is constantly swollen and in pain, with the pain level being consistently an eight. He also testified that he experiences occasional periods of instability with his right knee, which he described as his knee “giving out.” He stated that he wears a knee brace to help with this problem. In regard to his left knee, he testified that it does not swell but that it constantly hurts. No medical treatment records associated with the claims file indicated that the Veteran’s right or left knee symptoms were more severe than those exhibited on VA examinations during the appeal period. In view of the above, the Board finds that neither the Veteran’s right nor left knee disability met the criteria for ratings in excess of 10 percent at any time during the appeal period. Higher ratings based on limitation of motion would require, at a minimum, flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, DCs 5260, 5261. However, neither knee exhibited such limited flexion at any time on appeal. In fact, both knees were found to have no limitations of motion. Further, in light of the findings of normal range of extension of each knee, a separate compensable rating based on limitation of extension for either joint is not warranted. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005) (in which VA’s General Counsel determined that separate disability ratings could be assigned under DCs 5260 and 5261 for disability of the same joint). However, the Board must also consider whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). The United States Court of Appeals for Veterans’ Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. Here, the Veteran has shown and attested to pain and functional limitation in both knees. However, repetitive motion testing was not shown to cause such additional limitation of motion as to suggest that the flexion or extension in either of the Veteran’s knees was functionally limited to a level warranting a compensable schedular rating. Moreover, pain was not shown to occur prior to the stopping points at a compensable range of motion with regard to either flexion or extension on either knee. Additionally, entitlement to a separate compensable rating for the Veteran’s right and left knee instability has been raised by the record. While the instability tests performed by the VA examiner were normal for both knees, during the June 2019 hearing, the Veteran testified that he experiences periodic episodes of instability with his right knee. He testified that his right knee occasionally goes out and that he wears a knee brace to help with this issue. The VA examiner also noted that the Veteran wears bilateral knee braces consistently and occasionally requires the assistance of a cane. The criteria under DC 5257 require “slight” subluxation or instability for a minimum compensable 10 percent rating to be assigned. Words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. While there have not been any clinical findings of subluxation or instability in either knee, the Veteran has provided lay testimony regarding the periods of instability he experiences with his right knee. The Board acknowledges that a veteran is competent to report on that of which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Board finds that there is sufficient evidence of record to warrant a separate compensable rating for the Veteran’s right knee based on slight instability under DC 5257. Due to a lack of clinical findings of instability, a higher disability rating is not warranted. Also, as there is no evidence of instability or subluxation for the Veteran’s left knee, a separate compensable rating under DC 5257 for his left knee is not warranted. In reaching these conclusions with respect to all of the claims on appeal, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his conditions, but, to the extent the Veteran believes that he is entitled to higher ratings than assigned herein, the Board concludes that the findings during medical evaluations are more probative than are the lay statements. Furthermore, the assertions of the Veteran regarding the severity of his disabilities are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran, but has also relied heavily on VA examinations, which duly considered his subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. In conclusion, the Board finds that there is sufficient evidence of record to warrant a separate compensable rating of 10 percent, but no higher, under DC 5257 for the Veteran’s right knee. However, the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for the service-connected left and right knee disabilities. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initial rating in excess of 10 percent for the service-connected lumbar strain The Veteran seeks a higher disability rating for his lumbar strain, which is currently rated at 10 percent under DC 5237. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bedrest to treat incapacitating episodes of IVDS, or even that he has had IVDS at any time during the appeal period. He has not argued to the contrary. Also, the August 2018 VA examiner stated that the Veteran did not have IVDS and did not state that bedrest had ever been prescribed for IVDS treatment. Further, there are no medical treatment records associated with the claims file which show that the Veteran had ever been prescribed bedrest for IVDS during the appeal period. As the prescription of bedrest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bedrest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate and the Veteran's lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237. A 20 percent evaluation is warranted if 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. In August 2018, the Veteran was afforded a VA examination to assess his lumbar strain. During the examination, he reported experiencing symptoms of stiffness and low back pain, and that sometimes his back would “go out.” He also reported experiencing flare ups, which he described as an increase in pain and tightness. He described his functional impairment due to his lumbar strain as limited running, standing, and climbing stairs. The initial ranges of motion of the Veteran’s lumbar spine were: forward flexion to 70 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation were normal, to 30 degrees. His combined range of motion of his thoracolumbar spine was 190 degrees. The examiner noted that the abnormal ranges of motion did not contribute to a functional loss. Pain was noted on forward flexion and right and left lateral rotation but did not result in functional loss. There was evidence of pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the back. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or range of motion after three repetitions. He was not examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran’s statements describing his functional loss with repetitive use over time. The examination was not conducted during a flare up, but the examination was medically consistent with the Veteran’s statements describing functional loss during a flare up. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with flare-ups. There was no guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to disability included limited range of motion, and interference with sitting and standing. The Veteran did not have any muscle atrophy, his sensor and reflex evaluations were both normal, his straight leg raising test was negative, and he did not report any radicular pain. The examiner found no ankylosis of the spine or IVDS. During the June 2019 hearing, the Veteran testified that he experiences significant stiffness in his back and has trouble bending over. He also stated that sometimes his back will go out or send pain down his legs. There are no medical treatment records associated with the claims file that indicate that the Veteran’s lumbar spine symptoms were more severe than those exhibited on VA examination. The Veteran also did not submit any written lay statements or argument during the appeal period asserting symptoms which warranted a rating higher than 10 percent for his service-connected lumbar spine disability. 38 C.F.R. § 4.71a clearly requires that a rating higher than 10 percent for a lumbar spine disability can only be assigned if forward flexion of the thoracolumbar spine is not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is no greater than 120 degrees; there is muscle spasm or guarding so severe as to result in an abnormal gait, or evidence of ankylosis of the entire spine. As noted above, his forward flexion was found to be to 70 degrees, and his combined range of motion to 190 degrees. Further, the examiner found that he had no ankylosis of the spine. Accordingly, the Board finds that the criteria for an evaluation rating in excess of 10 percent under DC 5237 have not been met at any time during the period on appeal. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU—Prior to October 1, 2019 The Veteran contends that he is entitled to a TDIU prior to October 1, 2019. As an initial matter, the Board finds that the issue of entitlement to a TDIU is part and parcel of the Veteran's claims for initial increased rating for his service-connected psychiatric disability, left knee disability, right knee disability, and his lumbar strain. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the earliest effective date possible for the award of entitlement to TDIU in the instant matter is September 1, 2011, the effective date of the award of service connection for the above disabilities. Thus, the issue before the Board is whether the Veteran is entitled to a TDIU prior to October 1, 2019. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, 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. 38 C.F.R. § 4.16(a). "Marginal employment," as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. Throughout the period on appeal, the Veteran’s service-connected disabilities have consisted of a psychiatric disability (rated as 50 percent disabling from September 1, 2011); a left knee disability (rated as 10 percent disabling from September 1, 2011); a right knee disability (rated as 10 percent disabling from September 1, 2011); and a back disability (rated as 10 percent disabling from September 1, 2011). Accordingly, the Veteran has a combined total disability rating of 80 percent from September 1, 2011, and the schedular criteria of 38 C.F.R. § 4.16(a) for a TDIU have been met prior to October 1, 2019. With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to October 1, 2019, for the reasons discussed below, the Board finds that the evidence warrants the conclusion that he was. Specifically, the Board finds that a TDIU from July 2019, but no earlier, is warranted. In the Veteran’s formal application for a TDIU, he reported that he was employed with Home Depot during the month of September 2019 but left this job due to his service-connected disabilities. VA sent Home Depot multiple requests to complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits but did not receive a response. The RO determined that the Veteran’s employment with Home Depot met the requirements of a substantially gainful occupation based on his reported hourly wage of $12.00, working 32 hours a week, which extrapolates out to $18,432.00 per year. [The poverty threshold for a single individual in 2019 was $13,300 per year.] However, the Veteran contends that he left this job due to his service-connected disabilities. As there is no evidence of record from Home Depot to the contrary, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to follow a substantially gainful occupation. Also, at the recent June 7, 2019 hearing, the Veteran testified that he was currently unemployed and had not worked in approximately 2 months. However, in his TDIU application, he reported that he was employed with Kreg Therapeutics from April 2019 to July 2019 at an hourly wage of $14.00 for 40 hours per week. (The Veteran did not provide a specific date in the month of July 2019 when he stopped working at Kreg Therapeutics.) The wage cited in this application extrapolates out to $26,880 per year. [As noted above, the poverty threshold for a single individual in 2019 was $13,300 per year.] Thus, this job would be considered a substantially gainful occupation. However, he contends that he had to leave this job due to his service-connected disabilities. In July 2020, Kreg Therapeutics submitted a VA Form 21-4192 which stated that the Veteran had been employed with them from May 21, 2019 until June 27, 2019, and that he voluntarily left the position, stating that he had found a better job. This contradicts the Veteran’s assertion that he was no longer able to work due to his service-connected disabilities. Given the inconsistencies in his previous statements, the Board affords more probative weight to the Kreg Therapeutics statement. Thus, the Veteran was able to secure and follow a substantially gainful occupation prior to July 2019. As he was gainfully employed prior to July 2019, entitlement to a TDIU prior to July 2019 is not warranted. Resolving doubt in his favor, entitlement to a TDIU from July 2019, but no earlier, is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.