Citation Nr: 21014631 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-62 170 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine (claimed as degenerative disc disease and degenerative joint disease) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to May 28, 2020, is denied. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the spine is manifest by forward flexion of 40 degrees and overall range of motion of 140 degrees without evidence of ankylosis or any incapacitating episodes due to her symptoms requiring bedrest in the last 12 months. 2. Prior to May 28, 2020, the Veteran’s service-connected disabilities did not preclude her from obtaining and maintaining substantially gainful employment consistent with her level of education, prior work history and training. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative arthritis of the spine (claimed as degenerative disc disease and degenerative joint disease) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 2. The criteria for entitlement to total disability rating based on individual unemployability (TDIU), prior to May 28, 2020, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1972 to October 1998. This December 2016 appeal comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Louisville, Kentucky which continued a rating of 20 percent for the Veteran’s service-connected degenerative arthritis of the spine. In a December 2018 decision, the Board denied a rating in excess of 20 percent for the Veteran’s spinal disability. In a September 2019 decision, the U.S. Court of Appeals for Veteran’s Claims (CAVC) found VA failed its duty to assist the Veteran as the VA examinations were inadequate. CAVC remanded the case on the issues of Veteran’s spinal disability and entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim in June 2020 for additional development including a new VA examination. The RO issued a December 2020 rating decision granting TDIU effective May 28, 2020 and a December 2020 supplemental statement of case (SSOC) denying a rating in excess of 20 percent for degenerative arthritis of the spine. The case was then returned to the Board for adjudication. 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine (claimed as degenerative disc disease and degenerative joint disease) Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking work. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected spinal condition, diagnosed as degenerative arthritis of the spine (claimed as degenerative disc disease and degenerative joint disease) is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (see also DC 5003). The Veteran also has a prior diagnosis of intervertebral disc syndrome (DC 5243) and therefore the Board will consider which rating will provide a higher evaluation for the Veteran. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, diagnostic code 5242 was assigned for degenerative arthritis of the spine (see also DC 5003) and diagnostic code 5243 for intervertebral disc syndrome. As of February 7, 2021, under the amended criteria, diagnostic code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than intervertebral disc syndrome (see also either DC 5003 or 5010). It also amends diagnostic code 5243 for intervertebral disc syndrome (IVDS) allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise diagnostic code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each diagnostic code was unchanged. Under Diagnostic Code 5242, a 10 percent rating is assigned 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 assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Under Diagnostic Code 5243, a 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the last 12 months. For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. The Veteran contends that she should be granted a higher rating for degenerative arthritis of the spine due to the severity of her symptoms. The Veteran states that the conditions cause her pain and limits her ability to bend, kneel, walk, sit or stand for extended periods of time. She states she can only sit or stand for approximately 10-15 minutes before the pain increases. In a July 2015 statement in support of claim, the Veteran stated that her low back pain had worsened to the extent that it interfered with her ability to conduct her daily life. See August 2015 Correspondence. She stated that she was unable to garden, wash dishes, cook or put laundry away because mild bending creates severe lower back pain after only a few minutes. Id. The Veteran submitted private medical treatment records from March of 2015 where she reported moderate low back pain that increases with ambulation. See August 2015 Private Medical Treatment Records. She started physical therapy and during her initial evaluation showed forward flexion of the thoracolumbar spine to 80 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, and left lateral flexion to 25 degrees. Approximately 3 weeks later, after 6 sessions of physical therapy, she was re-evaluated and showed forward flexion of the thoracolumbar spine to 100 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, and left lateral flexion to 30 degrees. Id. Her plan goals were completed, and she was discharged in May 2015. During an September 2015 VA examination the Veteran was diagnosed with intervertebral disc syndrome and showed forward flexion of the thoracolumbar spine of 40 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 30 degrees for a total range of motion of 140 degrees; painful motion did not further limit the Veteran’s range of motion. The Veteran was able to complete the repetitive-use testing without additional limitations to her range of motion. The Veteran did not report having flare-ups. There was evidence of muscle spasm and/or guarding but it did not cause abnormal gait or spinal contour. The Veteran had normal muscle strength and a normal sensory examination. The examiner opined the Veteran had IVDS but did not have any incapacitating episodes within the last 12 months. The VA examiner opined that the Veteran’s spine condition would impact her ability to work as she was unable to tolerate bending forward after a few moments, even short periods of standing, sitting, and walking cause an increase in lower back pain. The examiner failed to provide information whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In her December 2015 notice of disagreement (NOD), the Veteran indicated that she wanted a higher evaluation because she was in severe pain and was looking into surgery. She further indicated that the examination was not adequate because the examiner was not a specialist and did not review her x-rays. Id. In support of her contentions, she submitted private medical treatment records. During a November 2015 medical appointment, the Veteran’s private physician noted she had low back pain with pain localized to one or more joints. See January 2016 Private Medical Treatment Records. A spinal examination demonstrated a healthy female with anterior motion to 70 degrees and normal muscle strength and reflexes. The examiner opined that based upon her MRI and response to several nerve blocks, that her symptoms were likely caused by sacroiliac joint dysfunction. Further, he noted that the Veteran stated she had dramatic improvement in her pain after receiving nerve blocks in the joint. Id. During a March 2016 VA examination the Veteran showed forward flexion of the thoracolumbar spine of 50 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 25 degrees for a total range of motion of 140 degrees; painful motion did not further limit the Veteran’s range of motion. There was evidence of pain with weight bearing. The Veteran was able to complete the repetitive-use testing without additional limitations to her range of motion and did not report having flare-ups. There was evidence of muscle spasm and/or guarding but it did not cause abnormal gait or spinal contour. The Veteran had normal muscle strength but decreased sensation at L4/L5/S1. There was no evidence of ankylosis or radiculopathy. The examiner opined the Veteran had IVDS but did not have any incapacitating episodes requiring bed rest within the last 12 months. The VA examiner opined that the Veteran’s spine condition would impact her ability to work as her ability to bend, lift, twist and turn are limited due to pain and decreased range of motion. The examiner indicated he was unable to provide information whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time without speculation. The Veteran had a spinal cord stimulator surgically implanted in October 2016. See July 2020 Private Treatment Records. During a follow-up appointment in November 2016, she reported that the stimulator was reducing her pain and pain was only occasional with certain movements. In January 2017, the Veteran indicated that her back was excellent with the stimulator and she had “no complaints whatsoever about her back”. Id. During a follow-up medical appointment in January 2017, the Veteran’s other private physician noted that the Veteran reported similar success with the spinal stimulator and that it had helped her significantly. See August 2020 Private Treatment Records. The December 2020 VA examiner reported the Veteran showed forward flexion of the thoracolumbar spine of 70 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees for a total range of motion of 220 degrees; painful motion was noted but did not cause additional loss of motion. There was no additional loss of motion after repetitive use. The examiner indicated pain and fatigue limited functional ability with repeated use over a period of time resulting in forward flexion of 60 degrees, extension at 25 degrees, bilateral lateral flexion at 25 degrees, and bilateral lateral rotation at 25 degrees. There was evidence of pain with weight bearing and non-weight bearing, but no additional limitation of motion was noted. The examiner indicated that the examination was being conducted during a flare-up, and that pain, weakness, and fatigue limited functional ability, however there was no additional loss of motion. There was evidence of muscle spasm causing abnormal gait and spinal contour. The Veteran’s reflexes and sensory examination were normal and there was no evidence of radiculopathy or ankylosis. The examiner opined the Veteran did not have IVDS, but that her symptoms could cause 2-4 weeks of work time lost in a 12-month period. The examiner noted that passive range of motion of the spine was not tested because it could not be completed in a safe and reasonable manner. There is conflicting evidence regarding the Veteran’s current pain and functional loss. The Veteran indicated in the December 2020 VA examination that her pain had worsened since 2016 and that she had a spinal stimulator implanted in 2016 which improved her pain slightly. However, in January 2017, the Veteran indicated to her two separate private physicians that the stimulator helped her significantly, that her back was excellent and she had no complaints about her back. See July and August 2020 Private Treatment Records. Generally, statements made for the purposes of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct.736 (1992). The Board finds that the Veteran’s statements to her medical providers are credible as she was seeking medical treatment for her back pain and are entitled to more probative weight then the statements she made to the VA examiner for the purpose of seeking compensation. In a September 2019 decision, the CAVC ruled that parts of both the September 2015 and March 2016 VA examinations were inadequate. However, the Board will consider the remaining evidence from these examinations as both provide the most comprehensive medical evaluation of the Veteran’s condition during that period of appeal. The Board finds that during the period of appeal the Veteran had forward flexion of the thoracolumbar spine of 40 degrees and a combined range of motion of 140 degrees. The Veteran had functional loss due to limitations of motion, pain, fatigue, weakness and interference with standing and sitting, but did not have ankylosis or any incapacitating episodes due to her symptoms requiring bedrest in the last 12 months. Applying the most favorable rating criteria under diagnostic code 5242, a rating in excess of 20 percent for degenerative arthritis of the spine is not warranted. 38 C.F.R. § 4.71a. The Veteran argues that if there is evidence of pain, and the pain interferes with the body’s movements, then the pain has caused a functional loss and the Veteran is entitled to an evaluation based on functional loss. However, all the Veteran’s symptoms are specifically contemplated under DC 5242. Specifically, the rating criteria provides for ratings based on limitation of motion of the spine including due to pain and other orthopedic factors and incapacitating episodes. 38 C.F.R. §§ 4.40, 4.45, 4.59. The symptomology and impairment caused by the Veteran’s lumbar spine disability, to include pain, weakness, fatigue, and decreased range of motion is contemplated by the pertinent rating criteria. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Accordingly, the rating currently assigned contemplates the Veteran’s level of disability and symptomatology for the entire appellate period. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 20 percent for degenerative arthritis of the spine (claimed as degenerative disc disease and degenerative joint disease). The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 28, 2020 In a June 2020 decision, the Board remanded the issue of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), in accordance with the September 2019 CAVC decision and based on statements made by the Veteran that she had limited range of motion, difficulty climbing stairs, lifting, twisting or turning at the waist. In a December 2020 rating decision (RD) the RO granted the Veteran a schedular TDIU effective May 28, 2020, the date she met the schedular requirements for a TDIU. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. At the time the Veteran filed her August 3, 2015 claim for increased rating for her back condition, she was service connected for bilateral plantar fascitis rated at 10 percent; fibromyalgia rated at 20 percent; degenerative arthritis of the spine (degenerative disc disease) rated at 20 percent; tinnitus rated at 10 percent; left foot calcaneal spur rated at 10 percent; mild high frequency bilateral hearing loss with a noncompensable rating; and scars from basal cell carcinoma, upper left extremity, with a noncompensable rating. Her combined disability rating was 60 percent throughout this period. December 2020 Rating Decision Codesheet. The disabilities were not solely from the extremities, resulting from a common etiology or single accident, affecting a single body system, incurred in action, or incurred as a prisoner of war. See 38 C.F.R. § 4.16(a)(1)-(6). Therefore, prior to May 28, 2020, the Veteran did not meet the schedular TDIU requirements. Id. Entitlement to a TDIU may still be granted on an extraschedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), such as the case here, rating boards can refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). The term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner”). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Thus, despite the Veteran not meeting the percentage requirements for schedular TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions which would have justified a TDIU. See 38 C.F.R. §§ 3.341(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board cannot assign an extraschedular TDIU evaluation in the first instance under § 4.16(b). Here, the Board must make the initial determination as to whether referral to the Director of Compensation for an extraschedular TDIU rating under § 4.16(b) is warranted. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). After weighing the medical and lay evidence of record, the Board finds that the criteria for referral of TDIU on an extraschedular basis are not met. See 38 C.F.R. § 4.16(b). There is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of her service-connected disabilities from August 3, 2015. Ray, 31 Vet. App. at 62-66. The Veteran was gainfully employed in the U.S. Air Force for approximately 26 years and worked in the warning center, and later was teaching and working with computers until her retirement in October 1998. See December 2020 VA examination. She has a bachelor’s degree, and after her military retirement she became self-employed as a freelance software developer for numerous companies from 1998 until she retired again in 2003. See May 2020 Veterans Application for Increased Compensation Based on Unemployability. Turning to the non-economic aspects of her employability, the Veteran’s service-connected disabilities, while certainly causing impairment, do not appear to have impacted her functional ability severely enough to preclude all employment. When the Veteran retired in 2003, she was service connected for bilateral calcaneal spur and plantar fascitis rated at 10 percent; fibromyalgia rated at 20 percent; degenerative arthritis of the spine (degenerative disc disease) rated at 10 percent; tinnitus rated at 10 percent; mild high frequency bilateral hearing loss with a noncompensable rating; and scars from carcinoma removal with a noncompensable rating. Her combined disability rating was 40 percent. December 2020 Rating Decision Codesheet. As stated above, in a September 2019 CAVC decision, the court remanded for a determination by the Board whether TDIU had been reasonably raised by the record. The Veteran later filed a May 2020 application for TDIU stating that she retired in 2003 because she became too disabled to work. See May 2020 Veterans Application for Increased Compensation Based on Unemployability. The Veteran’s statements regarding her inability to work due to her service-connected disabilities are not supported by the record. During a March 2005 foot examination, she stated she retired from the military and planned on traveling extensively but could not do any traveling requiring standing and walking. See September 2013 Medical Treatment Record. Her June 2008 VA examination notes the cause of her retirement was due to eligibility by age or duration of work, and there is no indication it was due to disability. Id. In October 2008, when the Veteran was granted an increase from 10 percent to 20 percent for her back condition, she did not appeal or raise the issue of TDIU. In February 2011, she reported to her to private physician that she was retired, and there is no indication of her being unable to work due to pain or disability. See March 2016 Private Medical Treatment Records. She consistently reports in March 2015, July 2015, September 2015 and January 2016 that her occupation was retired military, but never reports to any physician or examiner that her back condition interfered with her ability to work or was the reason for her retirement in 2003. See August 2015 Medical Treatment Records, August 2015 Correspondence, September 2015 VA examination, January 2016 Statement. Finally, her January 2017 Appellate Brief fails to indicate that the Veteran is unable to work or was forced to retire due to her disabilities. In her May 2020 statement in support of TDIU, the Veteran’s main complaint is that her service-connected fibromyalgia makes her extremely sensitive to pain causing persistent aching, numbness and stiffness throughout her body. She experiences numbness and tingling in her arms, hands, legs and feet. Due to her fibromyalgia pain, she has fatigue throughout the day which also impairs her concentration and she becomes confused and irritable. The Veteran further states that her back condition causes her persistent pain and prohibits her from bending, kneeling and walking and therefore she is unable to cook, clean or garden. Id. The Veteran continues to discuss her difficulties with lifting objects, walking, standing and sitting, which all cause increased pain, but it is unclear if these symptoms are attributed to her fibromyalgia, her back condition, or a combination of both conditions. In further support of her TDIU claim, the Veteran submitted a private March 2020 vocational assessment completed by S.H., a certified rehabilitation counselor. See May 2020 Correspondence. In her report, S.H states that she reviewed the Veteran’s entire file and completed a telephone interview with the Veteran. The Veteran reported that while she was self-employed prior to 2003, that her service-connected disabilities made it difficult to complete her work. She reported that her back pain made it difficult to sit for long periods of time and that she used a footrest to elevate her feet. Her fibromyalgia caused her difficulties using her dominant right hand, making it difficult to type, write or use a computer mouse. In addition, her fibromyalgia caused challenges with bending, sitting, and resting her arms on the desk. Her cognitive abilities were affected causing her to experience brain fog and she would forget what she was doing or saying. She stated her hearing loss made it difficult for her to hear colleagues or speak on the telephone and her tinnitus was a distraction. The consultant, S.H., stated that in her opinion, that the Veteran was prohibited from maintaining substantially gainful employment since 2003 due to her service-connected disabilities. However, as discussed above, the Veteran has consistently reported from 2005 through 2017 that she retired from employment in 2003 and has never reported that her disabilities caused her to stop working in 2003. Further, at the time she retired, she only had a 10 percent rating for back condition, a 20 percent rating for fibromyalgia, a 10 percent rating for tinnitus and a noncompensable rating for hearing loss for a combined rating of 40 percent. Later in her report, the consultant opines that the Veteran was unable to secure substantially gainful employment, to include unskilled sedentary employment, due to service-connected disabilities from at least March 2015 but fails to explain the significance of this date. Id. S.H. provides a lengthy analysis of the record in support of her opinion that the Veteran was unable to maintain employment due to her disabilities, but she fails to consider the conflicting evidence in her analysis. Regarding the Veteran’s back condition, S.H discusses the severity of her pain with sitting, standing and walking, and opines these symptoms would prohibit the Veteran from sedentary employment. Id. However, S.H. never discusses the spinal stimulator implanted in 2016 to alleviate the Veteran’s back pain or the Veteran’s statements in January 2017 to her two private physicians that the stimulator helped her significantly, that her back was excellent and she had no complaints about her back. See July and August 2020 Private Treatment Records. In an August 2020 VA examination, the examiner opined that the Veteran would have difficulty with walking, standing, pushing, pulling, carrying, lifting, bending or other extraneous activities as well as concentration concerns due to increased fatigue and forgetfulness related sleep disturbance in certain work environments due to her service connected conditions. A December 2020 VA examiner opined the Veteran was able to perform sedentary work in a normal 8-hour workday. This includes work requiring exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. Id. The Veteran has a college degree and previously worked as a teacher, has experience working with computers, and was self-employed as a freelance software developer. See May 2020 Veterans Application for Increased Compensation Based on Unemployability. Although the Veteran’s service-connected disabilities may require she perform sedentary work, she is still able to continue to perform occupational tasks for her profession as she would be able to sit most of the time while working on a computer and take breaks as necessary. The evidence of record does not support that the Veteran was unable to obtain or maintain substantially gainful employment due to her service-connected disabilities. The Veteran’s occupational impairment from her disabilities manifested in difficulty walking, standing, carrying, lifting, bending or other extraneous activities as well as concentration concerns due to increased fatigue and forgetfulness related sleep disturbance in certain work environments, however she is able to perform sedentary work. See December 2020 VA Examination. The Board has considered the vocational assessment provided by S.H., however the Board concludes the report is entitled to less probative value then the other lay and medical evidence of record. See May 2020 Correspondence. First, the Veteran’s statements regarding pain due to her back condition are inconsistent with the record and therefore the Board does not consider her a credible reporter. Second, S.H. opines that the Veteran was unable to maintain substantially gainful employment since 2003, but then later in her assessment opines the Veteran was unable to maintain employment since at least March 2015, without any explanation. She also fails to consider evidence of record supporting that the Veteran’s back condition significantly improved in 2016, including the Veteran’s statements that she had no back complaints. Id. Therefore, the Board concludes that prior to May 28, 2020, the Veteran’s level of service-connected disability is compatible with employment in the marketplace. The Board acknowledges that the Veteran was awarded a schedular TDIU effective May 28, 2020, which coincides with an increase rating from 20 percent to 40 percent for her service-connected fibromyalgia. See September 2020 and December 2020 Rating Decision. However, the record does not support an entitlement to TDIU prior to May 28, 2020 and the Veteran cannot attempt to obtain an earlier effective date for her fibromyalgia claim under the auspice of entitlement to extraschedular TDIU. See 38 C.F.R. § 3.400. The Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of her service-connected disabilities and therefore extraschedular referral for a TDIU is not warranted. 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against referral of the TDIU claim on an extraschedular basis under § 4.16(b), the benefit of the doubt doctrine is not applicable, and a TDIU must be denied. 38 U.S.C. § 5107(b). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.