Citation Nr: 21007553 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 95-42 539 DATE: February 9, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected lumbosacral strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to July 3, 2017, is denied. FINDINGS OF FACT 1. The appellant’s lumbosacral strain has not manifested with symptoms of, or approximate to, forward flexion limited to 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine during the period on appeal. 2. The appellant’s service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment for the period prior to July 3, 2017. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2020), Diagnostic Code 5295 (2002). 2. The criteria for entitlement to TDIU prior to July 3, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from August 1986 to October 1991 and from June 2001 to September 2004. He was a member of the Missouri Army National Guard from July 1985 to August 1986 and from May 1992 to September 1994. He was also in the United States Army Reserve from May 1995 to May 2001. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 1995 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied a rating in excess of 10 percent for lumbosacral strain. The Veteran’s notice of disagreement (NOD) was received by VA in October 1995. A Statement of the Case (SOC) was issued in November 1995. VA received the appellant’s Substantive Appeal (Form 9) in November 1995, perfecting the appeal and requesting a hearing before the Board. A Supplemental Statement of the Case (SSOC) was issued by VA in January 1996. In a June 1996 rating decision, the RO increased the rating for the appellant’s thoracolumbar spine disability to 20 percent, effective February 2, 1995, the date of receipt of the claim. As the maximum schedular rating was not awarded, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2010, the Board denied a rating in excess of 20 percent for lumbosacral strain. The appellant appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2011, the appellant’s then-representative and the VA General Counsel filed a Joint Motion for Partial Remand (JMPR). The parties agreed that the Board failed to properly consider whether an extraschedular rating under 38 C.F.R. § 3.321(b) was appropriate for the appellant’s lumbosacral strain. In August 2011, the Court granted the JMPR and remanded the case to the Board for readjudication consistent with the JMPR. Also, in the November 2010 Board decision, the Board found that the appellant had raised the issue of entitlement to TDIU in a June 2010 communication to VA, asserting that all his service-connected disabilities affect his ability to obtain or maintain gainful employment. The Board assumed jurisdiction of the TDIU issue pursuant to Rice v Shinseki, 22 Vet. App. 447, 453-54 (2009). In May 2012, October 2015, June 2016, and April 2017, the Board remanded the matter for additional evidentiary development and due process considerations. While the matter was in remand status, in a February 2018 rating decision, the RO granted TDIU effective July 3, 2017. The issue of entitlement to a TDIU prior to July 3, 2017, however, remains in appellate status. Harper v. Wilkie, 30 Vet. App. 356 (2018). In August 2019, the Board again remanded the matter for additional evidentiary development as the appellant claimed his low back disability had increased in severity since he was last examined for VA compensation purposes. In July 2020, the RO issued a Supplemental Statement of the Case (SSOC). It is noted that during the course of this longstanding claim, the appellant has requested, and has been granted, multiple hearing opportunities. The appellant was afforded a Decision Review Officer (DRO) hearing in June 1996. The appellant was also afforded hearings before the Board in January 1999 and April 2008. Those hearings were conducted by Veterans Law Judges no longer employed by the Board. He was notified of this fact and elected to appear at new hearings related to his claims. He has since been afforded hearings before each of the undersigned Veterans Law Judges. Those hearings occurred in March 2016, September 2016, and April 2019. Transcripts of all five Board hearings are of record. As a procedural matter, the Board notes that, since the issuance of the July 2020 SSOC and after transfer of the appeal to the Board, additional VA medical records and a copy of the appellant’s Federal OPMF file were added to the claims folder. The Board finds that the information contained in these records is cumulative of evidence previously of record and considered by the RO; as this evidence contains no additional relevant information, the Board finds that a remand for initial consideration by the RO is not necessary. 38 C.F.R. § 19.37. 1. Entitlement to a rating in excess of 20 percent for service-connected lumbosacral strain, is denied. The appellant contends that his service-connected lumbosacral strain is more disabling than currently rated. He asserts that his symptoms of significant pain cause functional loss which entitles him to a rating in excess of 20 percent for his disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). For the entire appeal period stemming from the date of receipt of the Veteran’s claim for an increased rating for his lumbosacral strain, i.e., February 2, 1995, such disability has been rated as 20 percent disabling, with the exception of the period from June 26, 2001, to September 17, 2004, when such rating was discontinued as he had returned to active duty, pursuant to Diagnostic Code 5295, which was later changed to Diagnostic Code 5237 upon the revision of the Rating Schedule. As previously noted, the appellant’s lumbosacral strain was rated under Diagnostic Code (DC) 5295, pertinent to lumbosacral strain, under the rating criteria in effect prior to September 26, 2003. In this regard, the Board notes that the rating criteria governing spinal disorders were revised on September 23, 2002 and September 26, 2003. The amendments renumbered the diagnostic codes and created a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. VA’s General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. The appellant’s spine was initially rated under 38 C.F.R. § 4.71a, Diagnostic Code 5295, which at the time of the receipt of his increased rating claim, listed the rating criteria for lumbosacral strain. Under DC 5294 for sacro-iliac injury and weakness, or DC 5295, a noncompensable rating was warranted for slight, subjective symptoms only. A 10 percent rating was warranted for painful motion of the lumbar spine. A 20 percent rating was warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position. And a maximum, 40 percent rating was warranted for severe symptoms, resulting in listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Additionally, under the old regulations, DC 5289, applicable prior to September 26, 2003, assigns a 40 percent evaluation for favorable ankylosis of the lumbar spine and a 50 percent evaluation for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a, DC 5289 (2002). Prior to September 26, 2003, intervertebral disc syndrome (IVDS) was rated under DC 5293. A noncompensable rating was assigned when the condition as postoperative and cured. A 10 percent rating was assigned for mild symptoms. A 20 percent rating was assigned for moderate symptoms, with recurring attacks. A 40 percent rating was assigned for severe symptoms, with recurring attacks and only intermittent relief. A 60 percent rating was assigned for pronounced disability, with persistent symptoms compatible with sciatic neuropathy which characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Prior to September 26, 2003, under DC 5292, limitation of motion of the lumbar spine warrants a 10 percent rating if it is slight, a 20 percent rating if it is moderate, and a 40 percent rating if it is severe. 38 C.F.R. § 4.71a, DC 5292 (2002). Beginning September 26, 2003, schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine. 38 C.F.R. § 4.71a. The formula contemplates symptoms such as pain (including whether it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. In May 2013, the RO began rating the appellant’s lumbosacral strain under the new rating criteria under DC 5237. There was no change in the percentage assigned. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The appellant filed his claim for an increased rating for his lumbar spine in February 1995. The appellant’s lumbar spine was examined during a May 1994 VA examination. He reported symptoms of pain which he stated he treated with Motrin. He had normal posture and gait upon examination. Range of motion testing revealed flexion from 0 to 90 degrees, and extension, left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation, each from 0 to 30 degrees. X-ray testing showed alignment and vertebral body heights were maintained with intervertebral spaces grossly maintained. This testing was found to be unremarkable. The appellant was scheduled for a VA examination of his lumbar spine in May 1995, for which he failed to appear. The appellant was rescheduled for an examination in December 1995, which he did attend. He reported current symptoms of back pain, occurring constantly, radiating down the outside of the right leg to the calf. He reported some numbness and tingling in the right lower extremity. He reported an increase in symptoms with twisting, turning, prolonged sitting and standing, and lifting. Gait and station were observed to be normal. He had moderate muscle spasm and tenderness. Single Leg Raise test caused minimal low back pain bilaterally at 80 degrees. Reflexes and muscle strength were normal. Range of motion testing revealed flexion from 0 to 90 degrees, and extension, left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation, each at 0 to 30 degrees. X-ray testing showed normal alignment, vertebral body heights, and no change from the previous x-rays. No neurological involvement was recorded. The appellant attended another VA examination in December 1997 where he reported symptoms of back pain all the time that ranged from dull aching to sharp pain with trouble sitting. He also asserted that he experienced weakness, stiffness, and fatigability in his back, with pain occasionally radiating to his legs. He reported occasional flare ups, with no precipitating cause, that were relieved by lying down for 20 to 30 minutes. He also asserted he occasionally used a crutch for support. Range of motion testing showed forward flexion of 0 to 60 degrees, extension of 0 to 30 degrees, left and right lateral flexion from 0 to 30 degrees, and left and right lateral rotation from 0 to 30 degrees. His gait and station, heel and toe walk, and ability to squat and arise were all observed as normal. Tenderness, but no muscle spasms, were seen. Straight leg raise testing caused low back pain at 85 degrees on the left but no pain to 90 degrees on the right. Deep tendon reflexes were decreased on the left side at all 3 testing points, with no notation of decreases on the right side. There were no sensory deficits, no loss of muscle strength, no neurological abnormalities, and no postural abnormalities. Recent x-rays showed no evidence of arthritis or other degenerative change. The appellant underwent an additional VA examination in April 2006 where he reported a constant dull ache in his lumbar spine with a severity of 5/10 that increases to 7/10 as the day goes on. He reported the pain radiating up and down the left side. He did not endorse additional range of motion loss or incapacitation due to flare-ups of pain. He reported morning stiffness and some weakness in the legs. There were no bladder or bowel complaints. He was observed to be able to walk unaided, though he did state he used a cane for long distance walking. He was not found to be unsteady when walking. The disability was found to have no effect on his occupational capacity as he was working as a youth counselor at the time. Range of motion testing showed flexion from 0 to 90 degrees, extension 0 10 18 degrees, left and right lateral flexion from 0 to 30 degrees, left lateral rotation from 0 to 30 degrees and right lateral rotation from 0 to 40 degrees. No muscle spasms were noted and his gait was normal. Spinal curvature was normal. There was only mild discomfort noted at the end of forward flexion and backward extension. There was no additional loss measured after repeated use testing. There was no evidence of IVDS and no periods of incapacitation in the prior 12 months. There were no sensory deficits, no muscle atrophy, reflexes were slightly reduced, and straight leg raise had no radicular pain at 70 degrees bilaterally. X-rays of the spine were normal. The diagnosis of chronic lumbosacral strain was continued. The appellant underwent another VA examination in October 2008, at which he reported a history of symptoms of fatigue, decreased motion, stiffness, weakness, muscle spasms and pain. He reported acute moderate onsets of sharp pain lasting hours and occurring daily, with radiation to the left leg. He reported severe flare-ups occurring weekly and lasting for hours, usually caused by driving, lifting, or sleeping, with rest and medication as alleviating factors. The appellant reported no additional functional limitation during flare-ups. There was no evidence of IVDS and the appellant was noted to use a cane. He reported being able to walk less than 1 mile at any given time. During the examination, the appellant was observed with no signs of muscle spasm, muscle atrophy, guarding, tenderness, or weakness, but he did have sings of pain with motion. His gait was normal as was his spinal curvature. Muscle strength testing showed 4/5 strength in the muscles and movements of the left lower extremities, with normal muscle strength on the right side. There were some sensation deficiencies in the left lower extremity and there was some hyperactivity in the right lower extremity during reflex testing. There were no signs of any associated bladder or bowel issues. Range of motion testing showed flexion from 0 to 60 degrees, with pain beginning at 50 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 20 degrees and left and right lateral rotation from 0 to 20 degrees. The appellant’s passive and active range of motion was tested, with similar results and with pain in both passive and active ranges of motion. The effects on his occupational capacity due to this disability were noted to be problems with lifting and carrying, and he reported losing no work time due to his disability in the prior 12 months. It was noted to cause severe impairment on doing chores, shopping, exercise, sports, recreation, and traveling with no effect on feeding and only mild effects on bathing, dressing, toileting, and grooming. The appellant underwent another VA examination of his thoracolumbar spine in July 2012 which continued the diagnosis of lumbosacral strain. The appellant reported flare-ups occurring daily depending on the amount of activity. Range of motion testing showed flexion from 0 to 85 degrees, with onset of pain at 80 degrees, and extension, left and right lateral flexion, and left and right lateral rotation from 0 to 30 degrees, with onset of pain at 25 degrees. Repetitive use testing showed no decrease in range of motion. The appellant endorsed and was observed with symptoms of weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. He was observed with localized tenderness and with no signs of muscle spasm. Muscle strength testing showed the appellant with normal strength of 5/5 bilaterally in ankle dorsiflexion and great toe extension and muscle strength of 4/5 in hip flexion, knee flexion, and ankle plantar flexion. There were no signs of muscle atrophy indicating disuse. Reflexes and sensation to light touch were measured as normal. Straight leg raise testing was negative and there was no evidence of radiculopathy found. No other neurological abnormalities were reported. The examiner opined that this level of disability in the spine alone would limit the appellant’s ability to do custodial work. The examiner also noted in the general medical section portion of the examination that the appellant’s lumbosacral strain and left shoulder disability limited his ability to do prolonged lifting or walking. The appellant underwent another VA examination in July 2017. At that examination, the appellant reported flare-ups occurring twice a month, and requires the use of a cane if the appellant “does too much.” Range of motion testing showed flexion from 0 to 80 degrees, extension and right lateral flexion 0 to 25 degrees, and left lateral flexion, right lateral rotation, and left lateral rotation 0 to 30 degrees. The appellant exhibited pain in all ranges of motion with localized tenderness or pain on palpation, but there was no pain in general weight bearing. Repetitive use testing produced no decrease in range of motion. The appellant was being tested after repeated use over time, and showed no additional range of motion loss. The examiner did not conduct testing during a flare-up, and determined that the examination results were not medically consistent or inconsistent with the appellant statements describing his functional loss during flare-ups. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit the appellant’s functional ability during flare-ups. The appellant was noted with muscle spasms and guarding that did not result in abnormal gait or abnormal spinal contour. The appellant had normal muscle strength and no signs of atrophy in either lower extremity. Reflex testing and sensory testing were normal in both lower extremities, with a negative straight leg test bilaterally. The appellant was determined to have no signs of radiculopathy and there was no evidence of ankylosis as the appellant had almost full range of motion in the thoracolumbar spine. The appellant was not noted with any intervertebral disc syndrome. It was noted he occasionally used a crutch to aid in his mobility. In October 2017, an addendum opinion was obtained to address outstanding questions not answered in the July 2017 VA examination. The examiner noted that there was no difference in range of motion testing between weightbearing and non-weightbearing and that passive range of motion testing was not possible on the thoracolumbar spine due to the appellant’s weight. The examiner reaffirmed that the appellant did not have any neurological symptoms associated with his thoracolumbar disability. The appellant underwent another VA examination of his thoracolumbar spine in January 2020. At that examination, the appellant reported current symptoms of low back pain with activity, particularly bending and lifting, muscle spasms with certain activities such as walking, bending, lifting, standing too quickly, and long car rides, which on average last 10 to 20 minutes. He reported flare-ups occurring when the weather is cold and causes increased pain and a need to adjust position frequently to avoid discomfort. He also reported that flare-ups occur a few times a year and require him to use a cane. Range of motion testing showed flexion from 0 to 90 degrees, and extension, right and left lateral flexion, and right and left lateral rotation from 0 to 30 degrees each. No pain was noted on the examination, and the range of motion was noted as within normal limits. Repetitive use testing produced no additional range of motion loss. Pain after repeated use over time and during flare-ups was estimated to reduce forward flexion to 0 to 70 degrees, extension from 0 to 20 degrees, right and left lateral flexion from 0 to 25 degrees, and right and left lateral rotation from 0 to 30 degrees. These estimates were made in consideration of the appellant’s reports of symptoms. The appellant was noted with no muscle spasm or guarding which would lead to abnormal gait or spinal contour. Muscle strength testing was all normal, with no signs of muscle atrophy. Reflex testing and sensory testing was all normal. Straight leg raise testing was normal, and the examiner found no signs of radiculopathy. There were no signs of ankylosis, and the appellant was not noted as having intervertebral disc syndrome or any periods of incapacitating episodes in the prior 12 months. The examiner also noted the appellant occasionally uses a cane for mobility, and the examiner noted that the appellant’s disability caused a functional impact of difficulty with repetitive bending and lifting. There was no evidence of pain in non-weight bearing and passive range of motion testing was deemed medical inappropriate. Goldthwaite’s testing was performed and demonstrated the appellant had pain in the lumbar spine with testing, indicating his pathology was lumbar related and not sacroiliac related. In February 2001, the appellant submitted a report of medical history prior to his re-enlistment with the United States Army, in which he reported recurrent back pain that caused limitation of motion. In a May 2001 examination, the appellant’s spine was examined and found to be normal, and he was found fit for world-wide service. In May 2002, the appellant sought emergency treatment for left scapular and low back pain and was admitted. No range of motion testing was done, and the appellant appears to have been discharged the same day. He rated his pain as 9/10. A July 2003 MRI of the appellant’s lumbar spine showed normal alignment of the lumbar vertebral bodies. There were no signs of compression, with discs normal in height and signal intensity. There were no signs of disc herniations or disc bulging. The lumbar spinal canal was adequate in size and there was no evidence of stenosis. The neural foramina were patent and the distal end of the spinal cord was normal. At an April 2004 examination for the Medical Evaluation Board, the appellant reported symptoms of low back pain that was constant, starting at 4/10 in the morning and growing worse through the day due to activity, going to a 7-8/10, with radiation of the pain down the left lower extremity. No bowel or bladder dysfunction was reported. 3 measurements were taken of each range of motion in both active and passive positions. The average of the 3 measurements of active range of motion testing showed flexion from 0 to 49 degrees, extension from 0 to 31 degrees, left and right lateral flexion from 0 to 23 degrees, and left and right lateral rotation from 0 to 10 degrees. The average of the 3 measurements of passive range of motion testing showed flexion to from 0 to 50 degrees, extension from 0 to 31 degrees, left and right lateral flexion from 0 to 24 degrees, left lateral rotation from 0 to 10 degrees, and right lateral rotation from 0 to 11 degrees. Waddell’s testing showed the skin tender and light to touch, with no simulation, distraction, regional weakness or decreased sensation, and no over-reaction. Physical Evaluation Board proceedings from August 2004 found the appellant’s low back pain to result in range of motion limitation of forward flexion from 0 to 50 degrees, although no mechanical issue was noted to cause limitation of range of motion. There was no radiculopathy or spasm noted. The disability was recommended to be compensated at 10 percent. The appellant was found to be unfit for further duty due to the reduced mobility. A December 1995 x-ray of the appellant’s lumbosacral spine showed well-maintained vertebral alignment, interspaces, and body heights with preserved pedicles and intact psoas shadows. VA treatment records from April 1997 indicate moderate back pain, with good strength and reflexes intact. VA treatment records from July 1997 indicate the appellant’s symptoms of back pain were intermittent, with his reflexes intact. It was noted that he had arthritis and neuropathy of the left 4th and 5th fingers. VA treatment records generally throughout the period on appeal indicate the appellant was prescribed ibuprofen for pain management and inflammation, and methocarbamol for muscle spasms. X-ray records from July 2017 notes only mild degenerative changes of the lumbar spine with no evidence of disc space narrowing. VA treatment records do not include regular reports of treatment for lumbosacral strain or its symptoms, and the appellant did not seek treatment through VA for this disability during the period on appeal. The appellant’s first hearing before the Board occurred in January 1999. At that hearing he testified that he experiences pain, increasing with daily muscle spasms. He indicated he uses a back brace at work and walks with a cane, neither of which were issued by VA. He testified to reduced range of motion, and difficulty being able to bend to tie his shoes. He reported that he still works and had not lost any time from work. The appellant’s second hearing before the Board occurred in April 2008. At that hearing he testified that his back gets worse as the day goes on and he does more moving, lifting and bending. He testified that he takes motrin for pain. He stated he gets flare-ups with severe pain, which subsides if he rests. He also stated he uses a cane with flare-ups. He stated being seated for an extended period of time makes it worse. The appellant stated in a February 2010 communication to VA that his back pain was severe and that he could not walk without support. The appellant appeared before the Board for a hearing in March 2016. At that hearing, he testified that he has pain in all ranges of motion. He testified that his pain is about a 7 out of 10 every day, based on his activity level. He reported taking muscle relaxers to treat the condition. He reported flare-ups of the conditions. The appellant appeared before the Board in another hearing in September 2016. At that hearing he reported sharp pain in all ranges of motion of the spine. He reported that he could not get work due to his service-connected PTSD. He reported that he does have pain radiating down his legs at time, citing the period after his long drive to the VA for the hearing that morning. The appellant appeared before the Board for a hearing in July 2017. At that hearing, he testified to sharp pain in the back during his prior range of motion testing. The appellant reported that he gets radiation of his lower back pain into his legs. The appellant appeared before the Board for a hearing in April 2019. At that hearing, he reported that his back hurts first thing in the morning and continues to hurt until 10 or 11 o’clock in the morning, with pain subsiding after he’s been moving around a bit. He reported this pain is “almost every day” and that the symptoms are worse when the weather is cold. He reported difficulty moving and having to move slowly when standing up straight after bending over. In an October 1998 brief to the Board, the appellant’s representative contended that the appellant’s symptoms of lumbosacral strain would be better characterized as IVDS. It was argued that the appellant should be granted a 40 percent rating under the old DC 5293 because his symptoms most nearly approximated severe recurring attacks. It was not argued that these attacks occurred with only intermittent relief. In a June 2002 brief to the Board, the appellant’s representative made no substantive arguments related to the appellant’s claim for an increased rating for lumbosacral strain. In a September 2010 brief to the Board, the appellant’s representative made no substantive arguments related to the appellant’s claim for an increased rating for lumbosacral strain. In a March 2012 brief to the Board, the appellant’s representative adopted the arguments regarding the Board having failed to consider entitlement to an extraschedular rating, first raised in the July 2011 JMPR, but offered no substantive arguments as to why the appellant was entitled to an extraschedular rating under 38 C.F.R. § 3.321 for his lumbosacral strain. In a February 2015 brief to the Board, the appellant’s representative made no substantive arguments beyond the general assertion that evidence to support the claim was in the claims folder. In a March 2018 brief to the Board, the appellant’s representative made no substantive arguments beyond the general assertion that evidence to support the claim was in the claims folder. In an April 2018 brief to the Board, the appellant’s representative made no substantive arguments beyond the general assertion that evidence to support the claim was in the claims folder. In an August 2020 brief to the Board, the appellant’s representative made no substantive arguments beyond the general assertion that evidence to support the claim was in the claims folder. After a review of the relevant evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the appellant’s service-connected lumbosacral strain. Under the current rating criteria, the Board notes that there is no evidence that the appellant’s forward flexion of the thoracolumbar spine has been limited to 30 degrees or less, even during periods of flare-up or after repeated use over time. Range of motion testing at all of the appellant’s VA examinations has produced greater than 30 degrees of flexion. In fact, range of motion testing has showed gradual improvements over the years, with a lessening of observable symptoms and limitations due to symptoms. The appellant has reported no decrease in subjective symptoms such as pain; however, observable findings at these examinations does show improvement over the many years this appeal has been ongoing. Additionally, there have been no signs or symptoms of either favorable or unfavorable ankylosis during any of the period on appeal. Muscle strength testing has been generally normal. The July 2012 examination is seemingly a lone exception, only showing a limited loss of muscle strength. No signs of muscle atrophy, which would indicate disuse of the lower extremities due to symptoms in the thoracolumbar spine, have been observed. Regarding additional disability during flare-ups, the Board notes the appellant’s inconsistencies in reporting the frequency of his flare-ups, with him reporting daily flare-ups of pain earlier during the appeal period, twice a month flare-ups in July 2017, and only when the weather is cold in January 2020. Even if symptoms were more frequent, the appellant reports only symptoms of increased pain during these periods, and has not described additional functional impairment, to include further loss of range of motion or symptoms approximating favorable or unfavorable ankylosis during these periods. The Board also notes that the appellant was found to be in sound condition for purposes of re-enlisting on active duty. Although he was discharged due to symptoms of lumbosacral strain, even at that point, he did not have forward flexion of 30 degrees or less or favorable or unfavorable ankylosis. The Board has considered the appellant’s hearing testimony, in which he reports significant symptoms of severe pain in all ranges of motion; however, the symptoms of severe pain reported by the appellant do not approximate forward flexion limited to 30 degrees or less, or favorable or unfavorable ankylosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the appellant was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. While the appellant has reported significant pain, he has not reported, and the record does not reflect, that he ever was prescribed bed rest by a physician as treatment for his lumbosacral strain. The Board acknowledges the appellant’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the appellant’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that had severe or sharp pain every day in the thoracolumbar spine would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As this claim has been pending now for over 25 years, minus the more than three years during the appeal period where the appellant served on active duty, the Board has also considered the rating criteria which were in effect prior to September 2003 in rendering this decision. Under the old Diagnostic Code 5295, which the current disability was rated under, a 40 percent rating contemplates severe symptoms, resulting in listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Considering this criteria, the Board finds that the appellant’s symptoms do not meet these criteria during any of the period on appeal. While the appellant reports his symptoms as being severe throughout most of the period on appeal, listing of the whole spine to one side or the other, and x-ray evidence has shown no narrowing or irregularity of joint space due to lumbosacral strain. While there have been positive Goldthwaite’s sign, symptoms of limitation of forward bending in standing position and loss of lateral motion, these losses have been generally minimal, as shown by range of motion testing which has shown lateral movement within normal limits or close to normal limits throughout the period on appeal, and forward flexion generally greater than 75 degrees throughout the period on appeal. While there have been periods when the appellant’s range of motion has been measured as less than this, generally, his mobility has been generally near normal limits throughout the period on appeal. Also, the Board notes that throughout the period on appeal, the appellant has had normal or close to normal muscle strength testing results and no signs of atrophy, indicating that limitation of motion is not so much as to limit the appellant’s ability to use the muscles in question. The Board has also considered other previous Diagnostic Codes which were used for rating the spine. The criteria for the next higher rating are not met under Diagnostic Code 5293, as the appellant was not shown at any point during the period on appeal to have recurring attacks of severe symptoms with only intermittent relief. The appellant’s testimony throughout the appeal period indicates that symptoms are more limited to the period when he wakes up in the morning and after repeated use over time, which does not rise to the level of recurring attacks with only intermittent relief. At best, the attacks of severe pain are intermittent, occurring after repeated use over time. The criteria for the next higher rating under Diagnostic Code 5292 requires limitation of the lumbar spine be severe to warrant a 40 percent rating. As noted above, the appellant’s range of motion loss has never been greater than half of the normal range of motion in any particular range of motion tested. He has generally had greater than 66 percent of the normal range of motion in all of forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. The Board finds that this limitation of range of motion is not severe as contemplated by the prior rating criteria. Additionally, the Board notes that the appellant was found to be qualified for world wide duty at hs entrance examination before his period of active duty beginning in 2001. The Board affords significant probative weight to the fact that the appellant was able to continue serving in the United States Army Reserve and was found to be qualified for world-wide duty at the time he re-entered active service. This evidence weighs heavily against the appellant’s symptoms during the period prior to 2001 having risen to the level of being severe for purposes of assigning a rating greater than 20 percent under Diagnostic Codes 5293 or 5292. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the appellant has any neurological abnormality associated with his spine disability. At all of the appellant’s VA examinations, he was found to have no observable or diagnosable neurological symptoms related to his service-connected lumbosacral strain, to include radiculopathy and bladder and bowel issues, even when considering his reports of radiating pain. Sensation testing was generally found to be normal at the appellant’s VA examinations, with mild deficiencies in sensation noted at the April 2004 in-service Medical Board examination, and at the October 2008 VA examination. However, these appear to be inconsistent with the testing performed at every other examination. Even with these findings of decreased sensation, the examiners in April 2004 and October 2008 did not indicate the appellant as having neurological impairment as a result of his service-connected lumbosacral strain. While the appellant has reported instances of pain radiating into his legs, the Board affords greater probative weight to the findings upon examination at his VA examinations and the opinions provided by the VA examiners. The appellant is competent to report his signs and symptoms; however, the record does not indicate that he is competent to opine as to the cause of these symptoms, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the appellant’s lay statements regarding neurological symptoms being related to his service-connected lumbosacral strain are not competent evidence, and as such, the Board affords greater probative weight to the medical opinions offered by the VA examiners, who are competent to diagnose neurological symptoms and report whether their etiology is related to lumbosacral strain. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Considering all this, and after review of the entire record, the Board finds that the preponderance of the evidence is against the appellant having symptoms, due to his lumbosacral strain, that warrant a rating greater than that which he is already in receipt of. At no point during the period on appeal has his disability manifested with symptoms approximating forward flexion limited to 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. In fact, VA examinations over the last decade show the appellant may not meet the schedular criteria for the rating he is currently assigned, as he has generally not had forward flexion limited to 60 degrees or less, total range of motion limited to 120 degrees or less, and there has been no evidence of abnormal gait or spinal contour during the period. His symptoms have been consistent over the years this appeal has been pending, and over the last 15 years or so, have shown improvement throughout. The appellant has not sought or received any treatment for his disability beyond taking pain medication. As such, the Board concludes that the criteria for the next higher rating are not warranted for the appellant’s lumbosacral strain. 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5237. In light of the August 2011 JMPR, the Board has considered the question of whether an extraschedular rating is warranted. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the appellant’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of pain, painful motion and loss of range of motion in the thoracolumbar spine. Diagnostic Code 5237 contemplates these reported symptoms. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, such as those reported by the appellant. Because the Rating Schedule was purposely designed to compensate for such functional effects of the appellant’s disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the appellant’s disability picture, which includes reports of pain, weakness, and lack of endurance that affect mobility. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to July 3, 2017, is denied. The appellant filed his claim for TDIU in January 2011, asserting that all his service-connected disabilities, when considered together, prevented him from obtaining or maintaining gainful employment. He contends that his service-connected disabilities were the reason he was terminated from his employment in 2009 and are what have prevented him from obtaining gainful employment since. The appellant is already in receipt of TDIU from July 3, 2017; however, as noted below, the Board notes the appellant was granted TDIU from that date in February 2018. At that time, he was employed by the State of Missouri working for family services and earned above the poverty threshold in the 2018 calendar year. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Turning to the evidence of record, the Board notes the appellant was unemployed during most of the period that is on appeal. The appellant filed his claim for TDIU in January 2011. In that application, the appellant reported that his service-connected disabilities began affecting his full-time employment in November 2004. He reported working 40 hours a week from November 2006 to July 2007 and 70 hours a week from August 2007 to September 2009. He reported that at the time, his highest level of education was 2 years of college. He also contended that it was a combination of his various service-connected disabilities, not one disability alone, which caused his unemployability. From the time the appellant filed his claim for TDIU in January 2011, to July 3, 2017, the appellant had a combined disability rating of 70 percent with at least one disability, PTSD, rated greater than 40 percent disabling. As such, the Board notes that the appellant has met the schedular criteria for the entire period on appeal. At that time, he was also rated 20 percent disabled for lumbosacral strain and 20 percent disabled for residuals of a left shoulder injury, and had noncompensable ratings for residuals of a tumor removal from the left ear and left chronic greater trochanteric bursitis. The appellant’s left chronic greater trochanteric bursitis was reclassified as limitation of flexion of the left hip and assigned an increased 10 percent rating from May 23, 2011. The appellant was granted TDIU from July 3, 2017 in a February 2018 rating decision. Overall, he is currently rated 80 percent disabled from July 3, 2017, to include a 70 percent rating for PTSD from July 3, 2017, a 20 percent rating for lumbosacral strain from February 2, 1995, a 20 percent rating for residuals of a left shoulder injury from January 5, 2011, and 10 percent disabled for limitation of flexion of the left hip from May 23, 2011. He also currently has noncompensable ratings for limitation of extension of the left hip from July 25, 2012, and residuals of a tumor removal from the left ear. Considering this, the Board finds that the appellant has met the schedular criteria for TDIU for the entirety of the period from the date of claim to July 3, 2017. As such, the question for the Board in this claim is whether the appellant’s service-connected disabilities rendered him unemployable during that period. Turning to the evidence of record, VA treatment records from July 1996 show the appellant being employed with McDonald’s in Springfield, Missouri. The appellant’s hearing testimony from January 1999 indicate that he was still working and attending school at the time of the hearing, despite it being difficult due to symptoms of PTSD and low back pain. Between May 1995 and May 2000, the appellant also served in the United States Army Reserve. In June 2001, the appellant went back on active duty and remained on active duty in the United States Army until September 2004. In a pre-induction report of medical history from February 2001, the appellant reported being unemployed. He was eventually medically discharged due to his service-connected lumbosacral strain as he was found to be undeployable. At a VA examination in April 2006, the appellant reported working part-time as a counselor at a youth residential care center. After examining the appellant, the examiner opined that the appellant’s disability caused only mild mobility issues due to increased pain, with no additional impairments on the activities of daily living. At an April 2008 VA examination, the appellant indicated that he had been working for a vending machine company full-time for the prior 2 to 5 years, and that his back pain made it difficult for him to lift and carry things. VA treatment records from August 2009 show the appellant was still employed driving a truck for a vending machine company. A VA examination in November 2009 indicates the appellant was laid off from this job sometime in October 2009. At a February 2010 VA treatment appointment, the appellant reported difficulty finding employment, stating that he feels people misjudge him because of his speech impediment and that this speech impediment, which the Board notes is not service-connected, is the primary reason he cannot find work. A January 2011 VA treatment record indicates the appellant was unemployed due to downsizing at his former employer’s company, and that he had been unemployed for 1 to 2 years. A July 2012 VA examination found that the appellant’s thoracolumbar disability would limit the appellant’s ability to do custodial work, and that his hip bursitis would limit him from doing excessive walking or lifting. The examiner noted the appellant occasionally used a cane for support. Considering the appellant’s lumbosacral strain and his left shoulder disability, the examiner stated that these disabilities limited the appellant’s ability to perform prolonged lifting or walking. Considering all the appellant’s musculoskeletal disabilities, the examiner determined that based on the appellant’s functional ability, he had the physical strength to seek employment and to work. At an August 2012 VA examination, the appellant’s PTSD was found to not be severe enough to interfere with occupational and social functioning or to require continuous medication. The appellant indicated that he was working as recently as June 2012 and that he was taking courses in business administration at that time, having previously completed 60 college credits toward his degree. The examiner noted that the appellant’s speech impediment, which makes it difficult for other to understand what he is saying, was his biggest obstacle to obtain or maintain gainful employment. The examiner opined the appellant had no restrictions for job activities due to his PTSD. VA treatment records from April 2013 indicate the appellant had previously worked in a restaurant and had been a DJ for the past 30 years. A May 2013 VA examination found the appellant’s cholesteatoma and chronic otitis media did not have any impact on his functional capacity. At a September 2016 Board hearing, the appellant asserted he was unable to obtain or maintain gainful employment due to his PTSD, saying that prospective employers had told him they were afraid he would “go postal” and that his previous employer let him go because other employees thought he was a “time bomb.” He also stated that his previous employer let him go for economic reasons in 2009. He also stated that he had applied to work at the VA in Amarillo, Texas, but had not been hired, and that he believed it was due to his veteran status. In April 2017, the appellant submitted a letter from his former employer, dated September 25, 2009, indicating that his termination was due to economic conditions. The former employer thanked the appellant for his loyalty and reliability, and informed him that he had been an asset to the business. The former employer also informed the appellant that they would be happy to provide any references for future employment. At a July 2017 VA examination of the appellant’s thoracolumbar spine, the examiner noted the appellant’s reports that he could “on a good day” “walk 5 hours” and that he has not worked since June 2012, when he worked as custodian. The examiner did note the appellant occasionally uses a crutch to assist in getting around. At a July 2017 VA examination of the appellant’s PTSD, the examiner determined the appellant’s service-connected mental health disability had increased in severity, and that it now causes occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the appellant’s symptoms consisted of depressed mood, anxiety, circumstantial, circumlocutory, or stereotyped speech, impaired judgement, impaired abstract thinking, and an inability to establish or maintain effective relationships. Additional noted symptoms included irritable or angry mood, loss of interest or pleasure in activities, fatigue or loss of energy, difficulty thinking, concentrating, or making decisions, poor frustration tolerance, poor impulse control, poor insight, impairments in cognitive abilities, and difficulties with social communication and social interaction. Given these symptoms, the examiner determined that the appellant would have “substantial difficulty maintaining” employment due to mood problems, anxiety, fatigue, attention problems, cognitive and learning problems, and problems with communication and interpersonal interaction associated with his mental health conditions. At this July 2017 VA examination, the appellant also reported that he had graduated with a Bachelor’s degree in March 2015 and was, at that time, pursuing a post-graduate MBA degree through Grand Canyon University. He reported at that time that he last worked part-time as a custodian in 2010. Additionally, he reported that he has been unable to obtain employment due to nonservice-connected speech difficulties. He also reported having been diagnosed with a learning disability while in grade school, and only achieving average grades in school. He reported poor high-school grades and failing most of his classes at the University of Arkansas when he attended. In an October 2017 addendum to the July 2017 VA examination of the thoracolumbar spine, the examiner noted that while the appellant’s back, left shoulder, and left hip disabilities do limit the amount of work he is able to perform, the examiner did not believe the appellant was unemployable. Citing the appellant’s previous custodial work, and the appellant’s reports that he could walk 5 hours, the examiner opined the appellant could perform the custodial work with rest breaks and limited lifting. The examiner also reasoned that this is supported by the appellant’s range of motion testing and muscle strength testing which were discussed above. In a March 2018 statement in support of his claim, the appellant indicated that he had had difficulty for years obtaining employment, but that at the time he was working. He indicated his significant displeasure in having his VA disability payments garnished to off-set separation pay he received following his discharge from the United States Army in 2004. He indicated that he believed that he was not being hired previously because of his PTSD. In April 2018, at a VA treatment appointment, the appellant revealed to his treating mental health provider that he had been working since January 2018 for the State of Missouri. At an August 2018 VA appointment, the appellant reported being employed at family services, although he did not provide any further detail on the nature of this employment. VA treatment records from June 2020 reveal the appellant reporting that he was terminated from this employment due to accusations he sexually harassed another employee, but that he had found new employment working at a Tractor Supply Store. A January 2020 VA examination of the appellant’s thoracolumbar spine led the examiner to conclude that the appellant’s only functional limitation was difficulty with repetitive bending and lifting. Considering the evidence of record, the Board finds that the appellant’s service-connected disabilities did not render him unemployable prior to July 3, 2017. While the appellant has been unemployed during most of the period between when he filed his claim for TDIU and July 3, 2017, the Board finds that preponderance of the evidence is against the appellant’s service-connected disabilities causing functional impairment such that he would have been unable to perform the physical and mental acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Initially, the Board notes that the appellant’s service-connected disabilities did not contribute to his becoming unemployed in 2009, as evidenced by the letter from his former employer, indicating his being terminated had to do with the economic circumstances at the time. While the appellant has contended it is his belief that his mental health disability led to his losing that job, the Board affords more probative weight to the statement from the appellant’s previous employer regarding the reasons for the appellant’s termination of employment than to the appellant’s perceptions of the situation, as the appellant’s former employer is in better position to comment on the reason for his termination, having been the one to make that decision. If the appellant were fired for issues related to his service-connected PTSD, it is unlikely his former employer would encourage the appellant to use the company as a reference for future employment. The Board also affords substantial probative weight to the appellant’s academic achievements during the period on appeal. The appellant has a bachelor’s degree, which he completed during the period on appeal, and has been pursuing a master’s degree in business administration during the period on appeal. It is unclear whether he completed this degree, as he indicated in July 2017 that he was almost done, and then obtained employment in January 2018. The Board finds that the appellant’s participation in and completion of these educational programs indicate that he is capable of performing many of the mental acts required by employment. Many of the skills necessary for completing college level educational programs overlap with those necessary to adequate performance in the workplace, to include completing complex projects, organization techniques, maintaining a schedule, and meeting deadlines. The appellant also likely acquired and developed specialized knowledge and skills through these academic programs which would make him more capable of obtaining and maintaining gainful employment. The Board also affords substantial probative weight to the VA examinations conducted during the period on appeal with regard to the appellant’s musculoskeletal service-connected disabilities. Looking at the appellant’s physical functional capacity, VA examinations of the appellant’s musculoskeletal disabilities have determined that, while he does have some physical limitations, his disabilities only prevent him from occupations that would require significant physical activity, to include a lot of bending and lifting or being on his feet for more than 5 hours at a time. The Board affords these assessments significant probative weight, as they were provided after full examinations of the appellant’s range of motion and muscle strength, and an interview in which the appellant reported the functional limitations of his service-connected symptoms. The Board has considered the appellant’s contentions and reports of severe pain that prevents him from performing physical kinds of labor. However, the Board notes that the appellant does not receive regular treatment for any of his musculoskeletal disabilities. His reports of functional limitation are also at odds with the findings at his VA examinations which consistently show range of motion well-beyond what would be expected based on the appellant’s reports of symptoms. Considering this, the Board affords more probative weight to the VA examinations on the question of the occupational impact of the appellant’s musculoskeletal disabilities. The Board also affords substantial probative weight to the August 2012 VA examination of the appellant’s PTSD, which determined the appellant’s PTSD did not cause any impairment to his functional capacity and noted that his nonservice-connected speech impediment was the appellant’s biggest obstacle to obtaining or maintaining gainful employment. The examination was offered by a clinician who is qualified by training and experience to determine the functional impairment of the appellant’s mental health disability, after having conducted a full interview and examination with the appellant, in which the appellant noted having worked as recently as June 2012 and in which the appellant reported that he was completing college level coursework. The Board has also considered the July 2017 VA mental health examination of the appellant. While the examiner did opine the appellant’s PTSD caused symptoms which impacted his occupational capacity, and suggested that the appellant was unable to maintain gainful employment for a sustained period of time due to various symptoms. However, the Board affords this assessment low probative value, as the appellant was able to obtain steady employment with a state government agency within 6 months of that examination. The examiner also determined that it was not possible to separate the effects of the appellant’s nonservice-connected neurodevelopmental disorder from his service-connected PTSD. The examiner explained that many of the symptoms were overlapping and that it would require speculation to separate them. However, the August 2012 VA examiner was able to do this without resorting to speculation, and as such, the Board affords that examination more probative weight. Additionally, while the July 2017 VA examiner noted the appellant’s significant academic achievements during the period on appeal, this does not appear to have been considered in the determination that the appellant would be unable to maintain gainful employment. The Board also finds that the preponderance of the evidence establishes that the appellant has been able to obtain employment during the period on appeal or shortly thereafter. The appellant did report work as a custodian during the period on appeal, although he has not provided any details regarding the length, duration, or compensation for that position, and failed to include it on his application for TDIU in January 2011. He also obtained work in family services for the state of Missouri about a month before he was granted TDIU, in a position that provided him with earnings above the poverty level for the year of 2018. This employment with the State of Missouri shows both an ability to obtain and to maintain gainful employment. The Board has considered the appellant’s reports of his work history; however, the Board notes these reports have been inconsistent during the period on appeal. Some of the appellant’s statements indicate that he has been able to obtain employment during the period on appeal, indicating that he had worked as a custodian until sometime in 2012. This is in contrast to testimony the appellant provided in September 2016 that he had not worked since 2009. He also stated that he was terminated from his employment in 2009 due to issues with co-workers, reporting that they considered him a “time-bomb.” This conflicts with the letter sent to the appellant from that employer, which indicated that the appellant was terminated for financial reasons, that the appellant was loyal, reliable, and an asset to the business, and that he would be happy to provide a positive reference for the appellant. The Board also notes the inconsistencies in the appellant’s reported work history in more recent times, with him neglecting to report his employment, at least through 2018, with the State of Missouri on his November 2019 and May 2020 VA Form 21-4140. Additionally, the Board also notes that the appellant has repeatedly throughout the period on appeal, asserted that his nonservice-connected speech impediment was the biggest obstacle in obtaining or maintaining employment. This assertion has generally been made in a clinical setting when being examined for his service-connected disabilities. He has also suggested numerous times at his Board hearings that his symptoms of PTSD contribute to his being unable to get hired, suggesting that potential employers think he will “go postal.” The Board notes that the July 2017 examination determined that it would require speculation to differentiate which symptoms and functional impairments were due to the service-connected PTSD and the nonservice-connected neurodevelopmental disorder. However, the Board affords more probative weight to the August 2012 VA examination which attributed the appellant’s impairment in earning capacity to the nonservice-connected speech impediment, as this examination is more in-line with the other evidence of record, and because the July 2017 opinion on functional capacity was quickly proven wrong when the appellant found substantially gainful employment in January 2018. Ultimately, the question at issue with regards to this claim is not whether the appellant was unemployed for most of the period on appeal. A preponderance of the evidence clearly establishes that he was unemployed for most of the period between January 2011 and July 2017. The question at issue with regards to this claim is whether the appellant was able to perform the mental and physical acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Accordingly, the Board finds that a preponderance of the evidence does establish that the appellant was able to perform the mental and physical acts required by employment. The most probative evidence of record indicates the appellant was let go from his employment in 2009, beginning his period of unemployment, due to economic conditions at the company he worked for at the time. The preponderance of the evidence is also against his termination being related to a service-connected disability. Following this, the appellant spent a significant portion of time between his filing for TDIU in January 2011 and July 2017 pursuing educational opportunities and college level degrees. At a July 2017 VA mental health examination, he indicated that he had completed his bachelor’s degree in the years during which he was unemployed and had almost completed a master’s degree in business administration. His completion of these programs reveals that he more likely than not was able to perform the mental acts required by employment, and as such, the preponderance of the evidence is against the appellant being unable to obtain or maintain gainful employment. While the appellant reported significant pain due to his service-connected musculoskeletal disabilities, the most probative evidence of record establishes that the appellant was able to perform the physical acts required by employment, with limitations on standing for too long, and bending and lifting. The Board has afforded more probative weight to the VA opinions than the appellant’s lay opinions, as expressed at his Board hearings. The functional assessments from the VA examiners are more consistent with the observed range of motion, muscle strength, and the appellant’s reports of his functional capacity at his VA examinations than those provided at the appellant’s Board hearings. Additionally, the appellant was able to obtain what appears to have been gainful employment in January 2018 that continued for an undetermined length of time, although recent VA treatment records indicate that it ended due to a sexual harassment complaint. This employment appears to have been gainful, as the appellant was notified in November 2019 that he needed to verify his employment history for 2018, due to his Social Security records indicating that he had earned income above the poverty threshold for calendar year 2018. The appellant was not forthcoming in his response, and it is only from review of his VA treatment records that the Board was able to determine that he was earning an income and was working in 2018. Considering all this, the Board concludes that the criteria for TDIU are not met. 38 C.F.R. § 4.16. While the appellant may have had a period of significant length in which he did not work during the period between the filing of his claim for TDIU in January 2011 and July 2017, the Board finds that the preponderance of the evidence establishes that the appellant’s service-connected disabilities did not prevent him from obtaining or maintaining gainful employment. As such, the claim is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 4.3. K. Conner Veterans Law Judge Board of Veterans’ Appeals Michael Martin Veterans Law Judge Board of Veterans’ Appeals A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.