Citation Nr: 21015435 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-11 423A DATE: March 17, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine is denied. Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected DDD of the thoracolumbar spine prior to December 20, 2010, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s DDD of the thoracolumbar spine was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, intervertebral disc syndrome (IVDS) with incapacitating episodes, or associated objective neurological abnormalities other than those already separately rated. 2. The Veteran’s service-connected DDD of the thoracolumbar spine did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history prior to December 20, 2010. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for DDD of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2., 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a TDIU due to service-connected DDD of the thoracolumbar spine prior to December 20, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty September 2005 to October 2006, with additional service in the Navy Reserve from February 2001 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, the Veteran testified before a Decision Review Officer (DRO) and, in June 2016, he and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. In September 2016, the Board remanded the case for additional development and, in April 2018, denied, as relevant, the Veteran’s claims for a higher initial rating for his back disability and a TDIU. He subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court) and, in July 2019, the Court granted the Secretary of VA’s and the Veteran’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s April 2018 decision. In March 2020, the Board remanded the claims for additional development and they now return for further appellate consideration. 1. Entitlement to an initial rating in excess of 20 percent for DDD of the thoracolumbar spine. 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. 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 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. Separate ratings can be assigned for separate periods based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For the entire appeal period stemming from October 23, 2006, the date of service connection, the Veteran’s DDD of the thoracolumbar spine has been rated as 20 percent disabling pursuant to DC 5243 (IVDS), which is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 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 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. IVDS may be evaluated under either the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. As of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). In this regard, while such did not amend the General Rating Formula or IVDS Rating Formula, DC 5243 now includes the following notation: assign this DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. Thus, such changes do not affect the criteria under which the Veteran’s back disability is rated. In the July 2019 JMPR, the parties found that the Board relied upon inadequate VA examinations conducted in December 2007, March 2016, and June 2017 in denying the Veteran’s claim for a higher initial rating for his DDD of the thoracolumbar spine in the April 2018 decision. Accordingly, in March 2020, the Board remanded the claim in order to afford the Veteran another VA examination addressing the nature and severity of such disability that complied with all pertinent legal authority, to include DeLuca v. Brown, 8 Vet. App. 202, 205–06 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In April 2020, the Veteran was notified that VA had requested an examination in order to determine the current level of his disability, and was advised that the facility conducting the examination would notify him of the date, time, and place of it. The Veteran was also informed of the procedures to reschedule the examination if he could not make it, and, when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record or denied. In this regard, he was advised that examples of good cause include, but are not limited to, illness or hospitalization, death of a family member, etc. Thereafter, the Veteran was scheduled for a VA examination in July 2020; however, documentation reflects that he cancelled such examination and advised the facility that he was not pursuing the case. In a September 2020 letter and in the October 2020 supplemental statement of the case, the Veteran was advised that he had failed to attend the scheduled examination; however, to date, he has not presented good cause for his failure to attend or to express a willingness to attend a VA examination. In such a situation, 38 C.F.R. § 3.655(a) provides that, when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with, as relevant, a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). Consequently, as the Veteran did attend VA examinations in connection with his claim for a higher initial rating for his back disability in December 2007, February 2016, March 2016, and June 2017, the Board will adjudicate such claims on the evidence of record. However, any evidence expected to be obtained in connection with the newly ordered examination cannot be considered in the adjudication of the claim. Accordingly, the Board finds no evidence of record that supports an award of an initial rating in excess of 20 percent for the Veteran’s back disability. In this regard, while the July 2019 JMPR found that the Board erred in failing to address the results of the February 2016 VA examination, such does not support the award of a higher initial rating. In this regard, such report reflects that the Veteran refused to undergo range of motion (ROM) testing due to severe back pain and, thus, no ROM findings were provided. As noted in Mitchell, supra, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system,” and, thus, such refusal to undergo ROM testing due to severe pain is insufficient to demonstrate that such results in limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, which is required for the next higher rating of 40 percent under the General Rating Formula. Moreover, the remainder of the evidence of record likewise fails to show that the Veteran’s back disability results in such limitations that resulted in functional loss more nearly approximating flexion limited to 30 percent or less, or favorable ankylosis of the entire thoracolumbar spine. Specifically, as the February 2016 VA examiner was unable to record ROM findings, a new thoracolumbar spine examination was conducted just one month later in March 2016. While the JMPR found such examination inadequate as it did not properly address limitation of motion during flare-ups or test for pain on passive ROM, weight-bearing, and nonweight-bearing, it nonetheless shows that initial active ROM testing revealed that the Veteran had full flexion to 90 degrees without pain, which was not further reduced following repetitive use testing. In addition to the aforementioned deficiencies in the March 2016 VA examination, the JMPR also found that the December 2007 VA examination did not address whether there was additional functional loss due to flare-ups, identify the point where pain occurred on ROM testing, or test for pain on active, passive, and nonweight-bearing modes, and the June 2017 VA examination did not identify the point where pain occurred on ROM testing. Nonetheless, such examination reports fail to identify a basis for awarding an initial rating in excess of 20 percent for the Veteran’s back disability under the General Rating Formula. Specifically, such fail to reflect that the Veteran’s back disability resulted in limitation of flexion to more than 85 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, or ankylosis. Additionally, while the Veteran endorsed flare-ups at the December 2007, February 2016, and March 2016 VA examinations that caused him difficulty with lifting, bending, lying in bed, and standing for short periods of time, such were described in terms of increased pain rather than additional limitations in ROM. Moreover, the Board finds that such physical limitations are contemplated by the currently assigned 20 percent rating as ratings for disabilities of the musculoskeletal system are assigned based on the inability to perform the normal working movements of the body, which necessarily includes physical activity. 38 C.F.R. § 4.40. The Veteran also denied experiencing flare-ups at the June 2017 examination. Therefore, the Board finds that functional limitations associated with the Veteran’s back disability do not result in functional loss more nearly approximating flexion limited to 30 degrees or less or favorable ankylosis of the entire spine. See DeLuca, supra; Mitchell, supra. Consequently, the Veteran is not entitled to an initial rating in excess of 20 percent for his back disability under the General Rating Formula. The Board further finds that, for the same reasons articulated in the April 2018 decision, with which the JMPR found no deficiency, that the Veteran is likewise not entitled to an initial rating in excess of 20 percent for his back disability under the IVDS Rating Formula. In this regard, while the Veteran’s representative argued that the Veteran’s DDD thoracolumbar spine should be assigned a rating in excess of 20 percent pursuant to the IVDS Rating Formula given the frequency of his incapacitating episodes at the June 2016 Board hearing, the Board finds such argument to be without merit. Under the IVDS Formula, a 40 percent evaluation is warranted when there are incapacitating episodes (periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician) having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. In this regard, the June 2017 VA examiner reviewed the records and noted that the Veteran complained of low and mid back pain in October 2007, which kept him from doing chores, and flare-ups that lasted 3 days, which he treated by laying on his couch. Additionally, in January, February, and April 2008, he complained of low back pain treated with epidural steroid injections. Moreover, a January 2008 VA treatment note stated that he had epidural in lower back 1 year ago with 2.5 months of relief. However, he continued to work in construction and did not state that there was incapacitation. In April 2010, the Veteran was treated for back pain and it was noted that he received an epidural injection in November 2009 with good relief for months and he wanted another injection. In February 2014, the Veteran enrolled in the Caregiver Program due to his mental health condition rather than his back disability. In December 2014, the Veteran reported that his back pain was so severe that he had to lie down for 1 to 2 weeks to decrease the pain. In November 2015, the Veteran went on a camping trip with his spouse and, in March 2016, he stated that he planned to go on another camping trip in the mountains. However, at February 2016 VA examination, he reported that he was often bedridden because of his severe back pain. He also stated that he underwent a spinal fusion in May 2012, but he continued to have severe back pain. In a September 2018 routine medical evaluation, the Veteran reported being able to regularly go to the local center for Veterans, as well as to attend medical appointments. Thus, not only is there no evidence of physician prescribed bedrest, as is required under the rating criteria, contemporaneous medical records suggest that the Veteran himself does not confine himself to a bed for rest to the extent necessary to warrant a higher rating. Indeed, the first mention of the Veteran confining himself to a bed was in the Veteran’s December 2014 VA treatment records. Furthermore, as noted, under the rating criteria, an incapacitating episode is defined as physician prescribed bed rest and treatment by a physician. By the Veteran’s own reports, he was not treated by a physician during his alleged periods of self-prescribed bed rest. Ultimately, as there is no evidence on file showing incapacitating episodes of disc disease requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least four weeks during the past 12 months, a higher rating under the IVDS Rating Formula is not warranted. Finally, the Board also finds that, for the same reasons articulated in the April 2018 decision, with which the JMPR found no deficiency, that the Veteran is not entitled to separate ratings for associated objective neurologic abnormalities other than those already separately rated under Note (1) of the General Rating Formula. Specifically, he is already in receipt of separate ratings for radiculopathy of the bilateral lower extremities, the propriety of which were addressed in the April 2018 Board decision and not appealed, and the evidence does not show that his back disability results in any additional associated objective neurologic abnormalities, to include erectile dysfunction (ED), or bladder or bowel incontinence. In this regard, the Veteran had complaints of urinary frequency, urgency, and urge incontinence, which existed since 2010. See June 2016 VA treatment record. In a November 2011 VA treatment note, the Veteran denied problems with bowel movement or urination. He also denied bowel incontinence in February 2016. In June 2016, an urologist diagnosed the Veteran with benign prostatic hyperplasia (BPH) with lower urinary tract symptoms (LUTS). Therefore, the June 2017 VA examiner concluded that there was no neurology or neurosurgery evaluation to suggest that the Veteran’s urinary symptoms were due to his degenerative lumbar spine condition. Moreover, in her July 2017 addendum opinion, she concluded that the Veteran’s records do not document evaluation or treatment for bowel incontinence and there was no current or past complaint of saddle anesthesia and no radiological studies demonstrating Cauda Equina Syndrome. Regarding erectile dysfunction, the Veteran denied problems with intercourse. See June 2016 VA treatment record. Moreover, the July 2017 VA examiner noted that the Veteran was found to have hypogonadism and was treated with testosterone. He was also treated with sildenafil with improvement. Moreover, she concluded that the Veteran had not been diagnosed with Cauda Equina Syndrome. Therefore, absent evidence of objective neurologic abnormalities of bladder or bowel incontinence or ED associated with the Veteran’s back disability, the Board finds that separate ratings for such conditions are not warranted. In reaching its conclusions, the Board acknowledges the Veteran’s belief that his back disability is more severe than as reflected by the currently assigned rating. While the Board recognizes that he is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of such symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran’s back, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has considered whether staged ratings under Fenderson, supra, are warranted for his back disability; however, his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds that an initial rating in excess of 20 percent for the Veteran’s back disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims. Thus, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU due to service-connected DDD of the thoracolumbar spine prior to December 20, 2010. While the JMPR vacated the April 2018 Board decision that denied entitlement to a TDIU due to the Veteran’s service-connected back disability prior to December 20, 2010, such was based on a determination that it was inextricably intertwined with the foregoing remanded claim rather than any deficiency with the Board’s analysis. Thus, for the same reasons articulated in the April 2018 decision, the Board finds that a TDIU due to the Veteran’s service-connected back disability prior to December 20, 2010, is not warranted. In this regard, the Veteran contends that, prior to December 20, 2010, he was unable to maintain substantially gainful employment due to his service-connected DDD of the thoracolumbar spine. The appeal period stems from the October 23, 2006, date of service connection until December 20, 2010, when he was awarded special monthly compensation at the housebound rate. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran does not meet the schedular criteria outlined above but he or she is unemployable by reason of his or her service-connected disabilities, rating boards should submit the claim to the Director, Compensation Service, for extra-schedular consideration. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award an extra-schedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Thus, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The Court also defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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. Upon review of the evidence, to include updated VA treatment records added to the file since the April 2018 decision, the Board again finds that the Veteran's service-connected back disability did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history prior to December 20, 2010. Pursuant to the September 2016 remand, in March 2017 the RO requested that the Veteran complete and return an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Veteran did not respond to the request for additional information concerning his claim for TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Nevertheless, the Board has attempted to piece together his employment history through various statements made since his separation from service. Turning to his educational and work experience, the evidence of record indicates that the Veteran completed one year of college. See August 2017 VR&E Application. In the September 2009 DRO hearing, he testified that he worked in construction doing mainly handyman duties and supervising others. According to the June 2016 Board hearing transcript, the Veteran testified that from 2006 to 2010 he did not work because there was no work and his back disability would have prohibited him from performing construction type of work on a full-time basis. The Board observes that, while the Veteran may have difficulties working due to his back disability, his VA treatment records and Social Security Administration (SSA) records indicate that his mental health conditions severely impacted his unemployability. In this regard, there is evidence that the Veteran was awarded SSA disability benefits primarily due to a primary disability of organic mental disorders and a secondary disability of affective (mood) disorders as of December 2009. However, the Veteran was service-connected with a 100 percent rating for posttraumatic stress disorder on June 18, 2010. In a December 2007 VA treatment note, the Veteran reported that he continued to work as a construction manager, but had difficulty bending and leaning over to do his job. He stated that the most he could do was light physical work about 8 to 16 hour a week. The Veteran submitted an application for vocational rehabilitation in October 2009. He stated that he was in construction, but he injured his back and knees; therefore, he could not perform manual labor. The Veteran wanted to be tested and retrained for a job that he was fit for. However, in May 2011, he was discontinued from the program because he stated that he could not afford to drive to Chico from Flournoy to participate in a work evaluation to determine feasibility. He indicated that his PTSD, traumatic brain injury, and back pain were so severe that he did not think he could return to work. During a November 2010 VA examination, the Veteran reported that he was unemployed due to mental health problems and his back pain. The November 2010 VA examiner opined that the Veteran would not be able to work as a handy man. Notably, the question of employability is ultimately a legal one, not a medical one. While the 2010 VA examiner did note that the Veteran's service-connected back disability could impact his employability, she did not opine that such disability would prevent employment. Moreover, the fact that the Veteran was no longer able to maintain his last employment as a construction worker or handyman did not establish that he is unemployable. See Van Hoose, 4 Vet App at 363. The evidence, as described and discussed above, clearly shows that the Veteran was able to maintain some level of physical activity and has training and expertise that could be valuable in the workforce, to include in a non-physical capacity. Based on the foregoing, the Board still finds that the Veteran's service-connected back disability did not render him unable to secure and follow a substantially gainful occupation prior to December 20, 2010. In this regard, while he did have some limitations associated with such disability, it alone was not of sufficient severity to produce unemployability. For instance, there is no evidence to suggest that the Veteran could not work in a position that allowed him to regularly change his physical position or work at a desk, or that the inability to lift, bend, or stand for short periods of time would be a bar to employment. Therefore, the evidence of record continues to indicate that the Veteran's back disability alone was not of sufficient severity to produce unemployability prior to December 20, 2010. As such, TDIU due to service-connected DDD of the thoracolumbar spine prior to December 20, 2010, is not warranted. See 38 C.F.R. § 4.16(a). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.