Citation Nr: 21012109 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-05 288 DATE: March 3, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) is denied. Entitlement to an earlier effective date prior to May 30, 2013, for the initial grant of service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran has had forward flexion of the thoracolumbar spine to more than 30 degrees, and he has no ankylosis. 2. In a January 2010 rating decision, the RO denied service connection for a back condition. The Veteran withdrew his appeal of this decision, and no new and material evidence was received within one year. 3. The next application to reopen the previously denied claim for service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) was received by VA on May 30, 2013. 4. The Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to an earlier effective date prior to May 30, 2013, for the initial grant of service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.156, 3.400. 3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have 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 These issues come to the Board of Veterans’ Appeals (Board) from a March 2016 rating decision. The Veteran submitted a notice of disagreement in May 2016 and perfected his appeal following a December 2019 Statement of the Case (SOC). That decision granted service connection for the lumbar spine condition, and the Veteran disagreed with the rating and the effective date. In a July 2020 brief, the Veteran’s attorney argued an inferred claim for TDIU was part of the pending appeal. The Board agrees considering the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for TDIU when the appellant claims he is unable to work due to a service-connected disability). There was sufficient evidence of record when the service connection claim was developed indicating the Veteran had not worked in many years because of his back condition. Although a January 2021 rating decision denied TDIU, it was already part of this pending appeal per Rice, so no further action was needed from the Veteran to give the Board jurisdiction to address it. While these claims were pending review by the Board, the Veteran has submitted several other claims, including another claim for an increased rating for his back condition. In developing these claims, the Regional Office has obtained updated VA treatment records and the Veteran has also undergone VA examinations, including one for his back in November 2020. The RO also obtained his records from the Social Security Administration. Further, in July 2020, the Veteran/his attorney submitted lay statements and medical opinions. Therefore, there has been significant additional evidence added to the claims file since the December 2019 SOC. However, in two signed statements in January 2021, one from the Veteran and one from his attorney, Regional Office consideration of this evidence was waived, and it was requested the Board proceed with his appeal. Therefore, the Board will consider all due process concerns satisfied and adjudicate his appeal. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149(2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra.  Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. 1. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) is denied. The Veteran is service-connected for low back strain at a 20 percent disability rating, effective May 30, 2013. The Veteran’s low back strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board notes that although various musculoskeletal diagnostic codes were amended effective February 7, 2021, no substantive changes were made to the rating criteria that applies here. Under the General Rating Formula for Diseases and Injuries of the Spine, the current 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. 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.”). The Board has reviewed the entire record, but the following medical evidence is the most pertinent and probative evidence with respect to whether the Veteran’s condition meets the schedular criteria for a higher initial rating. The Veteran was afforded a VA examination in March 2016 to evaluate the severity of his lumbosacral strain with degenerative changes. He reported experiencing limitations and functional loss due to pain and stiffness during flare-ups and with repetitive use over time. Physical evaluation reflected the Veteran had the following range of motion: flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The examiner noted the Veteran had marked decrease in his ability to bend. On Correia indicators, the examiner noted there was evidence of pain on passive range of motion; and there was evidence of pain when the joint is used in non-weight bearing. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was unable to complete repetitive testing due to pain. He had muscle spasm, tenderness and guarding that resulted in abnormal gait or abnormal spinal contour. He had reduced muscle strength (4/5) in all areas tested, but no muscle atrophy. Reflexes and sensation were all normal, and straight leg raising test was negative. It was noted that he constantly used a cane. The examiner noted he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with flare-ups or with repetitive use over time, as there was insufficient information and facts to support or contradict the Veteran’s statements. The Veteran was afforded another VA examination in December 2019 to evaluate the severity of his lumbosacral strain with degenerative changes. He reported experiencing limitations and functional loss due to pain and stiffness during flare-ups and with repetitive use over time. Physical evaluation reflected the Veteran had the following range of motion: flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. The examiner noted the Veteran had limited ability to bend, lift and twist. On Correia indicators, the examiner noted there was evidence of pain on passive range of motion; and there was evidence of pain when the joint is used in non-weight bearing. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was unable to complete repetitive testing due to pain and safety. The examiner noted he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with flare-ups or with repetitive use over time, as there was insufficient information and facts to support or contradict the Veteran’s statements. The Veteran walked into the exam room very slowly with an impaired gait using a cane. He was also very cautious as he stood up from the exam room chair, and he had significant decreased range of motion with tenderness over the lower lumbar area and significant guarding. He had difficulty putting his pants on and off and also his boots. The Veteran’s muscle strength and reflexes were normal, with no muscle atrophy. The most recent VA exam in November 2020 reflected additional diagnoses to lumbar strain – degenerative arthritis, spinal stenosis, and disc disease. The Veteran reported difficulty with bending, turning, standing for long periods of time, carrying items and walking for any long distances. He indicated he had flare-ups of the back condition anywhere from every day to three times a week, which last for hours, and are moderate in severity. The flare-ups are precipitated by standing, walking too long, and bending and are alleviated by rest and medication. Physical evaluation reflected the Veteran had the following range of motion: flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain was noted on the examination with range of motion and weight-bearing. The Veteran was able to complete repetitive use testing, but there was no additional loss of function or range of motion after three repetitions. However, it was noted that with repeated use over time the Veteran would have lack of endurance, and it was estimated his range of motion would be flexion to 35 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. It was also estimated that during flare-ups the Veteran would have pain and lack of endurance that would result in estimated his range of motion of to 30 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. There was no muscle atrophy, but there was reduced (4/5) muscle strength on most areas tested. There was no ankylosis of the spine. For assistive devices, it was noted the Veteran regularly used a brace and constantly used a cane. The VA outpatient records show consistent complaints of back pain and findings consistent with those discussed above on the VA examinations. MRI of the lumbar spine performed in 2015 at Western New York imaging demonstrated right L5-S1 laminectomy defect, with moderate left-sided disc herniation at L4-L5 causing an element of recess as well as central canal stenosis, and a moderate right-sided paracentral disc extrusion at Ll-L2. A July 2020 orthopedic evaluation indicated the Veteran’s gait was normal, and his mobility was very good during the examination. He had flexion to 80 degrees and was able to rock, heel-to-toe and tandem walk very wall. His coordination is good, and his mobility getting on and off the examining table was very good. He was able to change from supine to sitting position with no protection of the lower back and was able to sit on the examining table, both legs extended, with no discomfort. All muscle strength and reflex testing was normal. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for low back strain. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakness, and fatigability. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had additional limitations and flare-ups with walking, sitting for too long, or lying down 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 discussed above in recounting the medical evidence, forward flexion of the spine was 40 degrees or more from 2016 to 2020. The only suggestion he would have flexion limited to 30 degrees was the estimation that he would have such limitations during flare-ups. Even accepting that as true, the preponderance of the evidence shows that during examinations he did have the ability to flex greater than 30 degrees. Although the Veteran has at times not completed repetitive use testing, other examinations have shown he does have the ability to do so. To the extent that his VA exams show restricted flexion and extension due to pain, the Board notes that such limitation on the Veteran’s range of motion and restrictions have already been fully contemplated by the assigned schedular rating. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In short, the symptoms and functional limitations closely match the criteria for a 20 percent rating and do not meet or more closely approximate the criteria for any higher rating. The greater weight of the evidence is against this claim for an initial disability rating in excess of 20 percent. As noted above, 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. During the pendency of this appeal, a May 2020 rating decision granted separate 10 percent ratings for radiculopathy of the bilateral lower extremities, with 10 percent ratings for the sciatic nerves and 10 percent ratings for the femoral nerves (four separate 10 percent ratings). Then, a January 2021 rating decision increased those ratings to 40 percent for the left sciatic nerve and 20 percent for the right sciatic nerve, and the left and right femoral nerves, all effective July 22, 2020. The Board does not have jurisdiction to address these ratings. The grant of separate ratings was considered a full grant of benefits and is a separate appealable issue from the initial rating assigned for the spine condition. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). To challenge the downstream element, the Veteran was required to file a separate NOD with the initial ratings assigned. He has not done so, and he is represented by a private attorney who is presumed to be well versed with VA law and the procedures for challenging a rating assigned. There is nothing in the record suggesting to the Veteran that these separate neurological ratings were part of his appeal to the Board (i.e., they were not included in any Supplemental Statement of the Case), nor has the attorney argued in any of his correspondence to the Board that these separate ratings were part of the appeal. Therefore, the Board merely notes these ratings have been assigned, but does not have jurisdiction to review them. There are no other neurological abnormalities noted in the medical evidence. Finally, although the Veteran’s back condition could be rated under the criteria applicable to disc disease, there is no evidence of incapacitating episodes of the required time frame for the next highest rating. An incapacitating episode is defined by VA as one where a physician prescribes bedrest, not where an individual chooses to restrict activity or rest in bed because of the symptoms. 2. Entitlement to an earlier effective date prior to May 30, 2013, for the initial grant of service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) is denied. The Veteran is seeking entitlement to an effective prior to May 30, 2013, for his award of service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition). The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). In considering the pertinent evidence of record under the laws and regulations, the Board finds that May 30, 2013, is the correct date for the grant of service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition). In an August 2007 rating decision, the RO denied service connection for a back condition. The evidence of record reflects that the Veteran filed a notice of disagreement (NOD) in October 2007, but his representative withdrew that NOD in December 2007. In May 2008, the RO received a statement from the Veteran entitled “Notice of Disagreement,” but it was actually an exact duplicate of the NOD statement he had submitted in October 2007, which had already been withdrawn by his representative. Therefore, according to the handwritten notes on documents in the file, the RO determined this was not a NOD but a duplicate copy of the 2007 NOD, but the appeal had been withdrawn. The RO considered all these statements as another claim, however, and it was denied upon reconsideration in July 2008. He was notified of this decision in August 2008, yet he did not disagree with it. Instead, in July 2009 he requested the claim be reopened. As he specifically requested reopening, there is no way this statement could reasonably be construed as a NOD with the 2008 denial. The Veteran clearly knew how to file a NOD, as he had done so in 2007, but he chose instead to request the claim be reopened. However, there was additional evidence received within the year following the 2008 denial, so it did not become final. The RO recognized new and material evidence had been submitted in a January 2010 rating decision and reopened the claim, but continued to deny it. The Veteran was notified of this denial in January 2010, and he did not submit a NOD. Instead, he requested a hearing. In a March 16, 2010 letter, the RO advised him he had one year to submit a NOD. The RO did, however, schedule the hearing he had requested in May 2010. However, in April 2010, the Veteran canceled that hearing, stating he wanted to put his appeal on hold and withdraw it for now, so he could gather additional evidence. An April 7, 2010 letter advised him his appeal had been closed and reminded him he had one year from the January 2010 rating decision to submit an appeal. Additional evidence was received within the year following the January 2010 rating decision, but none of it was new and material to the extent it rendered that decision non-final. While the records from the Social Security Administration concerned his back condition, this was all linked to a work injury, with no suggestion of a relationship between the condition and military service (the reason the claim had been denied). The same applies to the VA and private medical records received and/or dated within one year of the January 2010 rating decision. They showed continued treatment for the back condition (a fact already established by the prior evidence of record, so not new), with no suggestion it was related to service. Therefore, as the Veteran expressly withdrew his appeal of the January 2010 rating decision and did not submit a timely NOD thereafter, nor was new and material evidence received within one year of that decision, it became final. In a May 30, 2013, Statement in Support of a Claim, the Veteran indicated that he wished to reopen his claim for service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition). Service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition) was granted in a March 2016 rating decision, in which an effective date of May 30, 2013, was assigned. As noted above, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In this case, the Board must conclude that an effective date earlier than May 30, 2013, the date of the Veteran’s application to reopen his previously denied claim for service connection for lumbosacral strain with degenerative changes (also claimed as lumbar disc disease, back condition), is not warranted. The Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation. In this case, the Veteran withdrew his claim on appeal in April 2010; no new and material evidence was received within one year of the January 2010 back condition denial; and there is no record of an application to reopen his previously denied claim being submitted prior to May 30, 2013. As such, the Board concludes that an earlier effective date is not warranted in this case under VA regulations governing effective dates for awards based on a claim to reopen after a final disallowance. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. The Veteran meets the schedular TDIU criteria under 38 C.F.R. § 4.16(a)—specifically, the Veteran has multiple service-connected disabilities, with at least one disability rated at 40 percent, and his combined rating has been 80 percent since May 2013. Therefore, a TDIU is warranted if the evidence shows that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16(a), 4.19. After a full review of the record, the Board finds that this is the case here. Therefore, entitlement to a TDIU is granted. The Veteran has a high school education, with some college, but not a degree. He last worked in approximately 1990 and stopped working following an on-the-job injury. His work experience is primarily in labor type positions. He was found disabled by the Social Security Administration (SSA) due primarily to his back disorder. The RO obtained his file from SSA, but all of the evidence is dated prior to the appeal period – that is, prior to the Veteran being awarded service-connected compensation effective May 2013. SSA did reconsider his entitlement to benefits in 2011 and disability was continued based primarily on back disorder. The 2016 VA examiner indicated the Veteran’s back condition impacted his ability to work as he is limited in sitting for 45 minutes at a time for a total of 3 hours in an 8- hour day, standing for 30 minutes at a time for 2 hours in an 8-hour day, and walking for 10 minutes at a time for a total of 1 hour in an 8-hour day. He is also not able to use a ladder or work on a ledge. The 2019 VA examiner indicated the Veteran’s back condition impacted his ability to work as he has limited ability to bend, lift and twist. The 2020 VA examiner also indicated the Veteran has difficulty with bending, turning and standing for long periods of time, as well as carrying items and walking for any long distances. However, he opined the Veteran could still work with his conditions. Regarding the service-connected bilateral plantar fasciitis, the 2019 VA examiner stated the Veteran was unable to run and jump; he could stand for 15 minutes or walk for 10 minutes, and only do one flight of stairs. The 2020 VA examiner indicated that the Veteran has difficulty standing or walking for prolonged periods of time; however, he should still be able to work at this time. The VA examiner’s opinions as to the Veteran’s ability to work have limited probative value. They were conclusory, without any explanation or rationale considering the Veteran’s particular work history and disabilities. In May 2020, an opinion was given by Dr. Etherton, who reviewed the Veteran’s claims file and talked with the Veteran. The physician concluded it is as likely as not that the combination of pain and limitations caused by the Veteran’s service-connected impairments prevent him from being able to work. He discussed the medical evidence and lay statements from the Veteran’s family members, as well as the Veteran’s educational and occupational history. Dr. Etherton’s comments on the Veteran’s limitations with standing, walking and sitting echoed those of the VA examiners discussed above, and he discussed the effect of such limitations on an average workday. This opinion is consistent with the facts of this case and entitled to significant probative value. The Board concludes the combined effects of his disabilities would likely preclude him from securing or following a substantially gainful occupation, in light of his past work experience. Considering the Veteran’s physical limitations on walking and standing, it is inconceivable how he could engage in his previous occupations, all of which involved at least a moderate level of physical activity. On balance, the evidence is at least in equipoise that the combined effects of the Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. Affording him the benefit of the doubt, entitlement to a TDIU on a schedular basis is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.