Citation Nr: 21016096 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-22 691 DATE: March 19, 2021 ORDER An increased rating of 50 percent (but no higher) for the Veteran's service-connected lumbosacral strain, effective June 14, 2011, is granted. A total disability rating based on individual unemployability (TDIU), effective June 14, 2012, is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of doubt, his symptoms associated with his service-connected lumbosacral strain more closely approximate the criteria for a 50 percent disability rating since at least May 2011 based on the available medical and other evidence within the record. A higher rating is not warranted because, for the entire period on appeal, the evidence does not show the Veteran’s symptoms manifested unfavorable ankylosis of the entire spine, as contemplated by the higher rating. 2. The Veteran meets the schedular criteria for TDIU (beginning June 14, 2012), and his service-connected disabilities prevent him from engaging in substantially gainful employment consistent with his level of education and occupational experience. CONCLUSIONS OF LAW 1. The criteria have been met for an increased rating of 50 percent (but no higher) for the Veteran's service-connected lumbosacral strain, effective June 14, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5242. 2. The criteria have been met for TDIU, effective June 14, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to February 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) that continued a 10 percent rating for lumbosacral strain. A March 2015 supplemental statement of the case (SSOC) increased the rating for lumbosacral strain to 20 percent, effective February 2, 2015. In June 2016, a Board hearing was held before the undersigned; a transcript is in the record. In August 2016, the Board remanded this matter for additional development. In August 2017, the Board denied a rating in excess of 10 percent for lumbosacral strain prior to February 2, 2015, and a rating in excess of 20 percent from that date. The Veteran then appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Veterans Court). A September 2018 Veterans Court Order granted a Joint Motion for Remand (JMR) regarding the August 2017 Board denial of a rating in excess of 10 percent prior to February 2, 2015, and a rating in excess of 20 percent thereafter, and remanded the claim to the Board for compliance with the directives specified by the JMR. In compliance with the Veterans Court’s September 2018 instructions, in February 2019 the Board remanded the appeal for further development. An August 2020 SSOC increased the Veteran’s rating for lumbosacral strain to 40 percent, effective February 2, 2015. Because the Veteran was not awarded the full benefit sought in this case, the increased rating claim for lumbosacral strain remains on appeal. In November 2020, the Board remanded the Veteran’s claims for further development. The case is now before the Board again. Although entitlement to TDIU was granted in an August 2016 Board decision (thereafter implemented and assigned an effective date in a December 2016 rating decision), the grant did not encompass the entire period on appeal. As a result, the issue remains before the Board and has been recharacterized accordingly. See Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating 1. An increased rating of 50 percent (but no higher) the Veteran's service-connected lumbosacral strain, effective June 14, 2012, is granted. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Consideration will be given to “staged ratings” since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. As part of an increased rating analysis, the effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment. Id. The Veteran’s lumbosacral spine disability has been rated under Code 5242, for degenerative arthritis of the spine, and the General Rating Formula for Diseases and Injuries of the Spine, which provide the following criteria for rating the disability 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 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for 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 limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Code 5235, 5242. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Code 5242, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5242, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. 38 C.F.R. § 4.71a, Code 5242, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings are applied. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. An “incapacitating episode” is defined as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a , Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and will focus on what the evidence shows, or fails to show, as to the claim. Factual Background Because the Veteran filed his claim for a rating in excess of 10 percent for his service-connected lumbosacral strain on June 14, 2012, the Board will evaluate medical evidence from one year prior (that is, around June 14, 2011). A May 2011 VA treatment record notes the Veteran reported to the emergency room (ER) because he woke up with an increase in his back pain. The Veteran reported he was unable to sit because of the pain. During the ER visit, the Veteran reported the pain was a 10/10 and was affecting his ability to sleep, physical activity, emotions, and energy. The Veteran also reported the pain began the morning before, and that nothing relieves the pain. He also stated standing and laying on his back, stomach, and right side make the pain worse. In a May 2012 VA primary care note, the Veteran reported continuing lower back pain and knee pain, and was using a back brace and knee brace. He also reported he had been on Vicodin for many years and he reported having pain which at its maximum was 7-8 out of 10. In a June 2012 VA radiology post-procedure note, the Veteran underwent an epidural steroid injection. He reported that his pain was rated 10 out of 10 before the procedure and 6 out of 10 afterwards. In September 2012 letter, the Veteran’s co-workers reported that he would sometimes cry or scream out in pain due to his back and that he sometimes has to lay on his back at work or do stretching exercises to help with the pain. In an October 2012 letter, the Veteran’s parents reported that the Veteran’s back pain would force him to sleep on the floor. In an October 2012 letter, the Veteran’s son reported that he sees his father in pain twenty-four hours a day and that the Veteran only gets about four hours of sleep at night due to his pain. The son also reported that he has to help the Veteran walk because he often stops in mid-stride because of pain. In an October 2012 VA radiology post-procedure note, the Veteran received an epidural steroid injection for his back pain. On October 2012 VA examination, lumbar strain, intervertebral disc syndrome (IVDS), and degenerative joint disease lumbar spine were diagnosed. The Veteran reported having flare-ups which caused difficulty walking, laying down, or sitting without pain. On range of motion testing, forward flexion was to 90 degrees with evidence of painful motion at 85 degrees; extension was to 30 degrees or greater with evidence of painful motion at 25 degrees; right lateral flexion was to 30 degrees or greater with evidence of pain at 25 degrees; left lateral flexion was to 30 degrees or greater with evidence of pain at 25 degrees; right lateral rotation was to 30 degrees or greater with evidence of pain at 25 degrees; left lateral rotation was to 30 degrees or greater with evidence of pain at 25 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no loss in range of motion. No ankylosis was noted. The examiner noted the Veteran had functional loss of the thoracolumbar spine due to pain on movement. The examiner found that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. IVDS was diagnosed, but the Veteran did not have any incapacitating episodes in the previous 12 months due to IVDS. The examiner noted the Veteran used braces for his back and knees. The examiner also noted that the Veteran’s gait was antalgic, but opined that that was due to his knees. In the Veteran’s February 2013 notice of disagreement he reported that he suffers from unbearable pain at night due to his lumbosacral strain, which causes shooting pain down both of his legs and up his spinal column through both shoulders and arms down to the fingers tips. In a May 2014 statement, the Veteran reported intense back pain with his “spine snapping and popping and both his lower shoulder blades feeling as if they were on fire.” He also reported he gets about two to two and a half hours of sleep at night. In a statement received in January 2015, the Veteran continued to report of back pain. He reported that his gait had changed, with his right foot pointing at least 30 degrees, causing him to have a constant limp. He also reported that over the prior five years he had lived with pain level 10 out of 10, with over 100 episodes where he would have to cry or lean on a wall or person due to pain. On February 2015 VA back conditions examination, the examiner noted degenerative disc disease of the thoracolumbar spine was diagnosed in 2004. On range of motion testing, forward flexion was to 90 degrees; extension was to 30 degrees; right lateral flexion was to 30 degrees; left lateral flexion was to 30 degrees; right lateral rotation was to 30 degrees; left lateral rotation was to 30 degrees. The examiner noted the Veteran had pain on forward flexion, extension, right lateral flexion, and right lateral rotation, and there was pain with weight bearing. The Veteran reported having flare-ups which would cause him to stop whatever he was doing mid-stride and he would have to sit down or lean on a wall. The Veteran reported having functional impairment by not being able to walk or sit for a prolonged period of time. He described the flare-ups as severe, occurring several times per day, and lasting from a couple of minutes to a couple of hours. The examiner noted that the examination was not being conducted during a flare-up, but the examination supports the Veteran’s statements describing functional loss during flare-ups. The examiner noted that range of motion during a flare-up was forward flexion was to 80 degrees; extension was to 25 degrees; right lateral flexion was to 30 degrees; left lateral flexion was to 30 degrees; right lateral rotation was to 30 degrees; left lateral rotation was to 30 degrees. The examiner noted that the Veteran had localized tenderness and guarding which resulted in abnormal gait or an abnormal spinal contour. The examiner found there was no ankylosis of his spine. The examiner also noted the Veteran has IVDS which resulted in episodes requiring bed rest having a total duration of at least one week but less than two weeks during the previous 12 months. On May 2015 VA back conditions examination degenerative arthritis of the spine was diagnosed. The Veteran reported having daily lower back pain which occasionally radiated down both of his legs. He also reported that he had had epidural steroid injections with minimal relief. The examiner noted relieving factors included back exercises and traction. The Veteran reported his baseline pain was rated 7 out of 10 with flare-ups occurring at least once a day. The Veteran described his flare-ups as pain rated greater than 10 out of 10, with “stabbing start[ing] in the small of [his] back [that] goes up and down his spine,” lasting from 5 to 60 minutes, and that he has numbness going down his right side to the bottom of his foot. The Veteran also described the functional impairment due to his spine condition as being barely able to work due to the pain; having pain while driving, pain on movement, especially bending and turning; and pain in his lower back when walking for more than 15 minutes or standing for more than an hour. The examiner noted the Veteran had pain on forward flexion, extension, right lateral flexion, and right lateral rotation, and there was pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner noted there was objective evidence of localized tenderness in his mid-lumbar and paralumbar spine, as well as his right sacroiliac joint. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner opined that this functional loss was due to pain and fatigue. The examiner also noted that the examination was not being conducted during a flare-up, and he opined that “the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups,” and he was unable to say without mere speculation as to whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability because he was not evaluated during a flare-up. The examiner noted that the Veteran had localized tenderness and guarding which resulted in abnormal gait or an abnormal spinal contour. The Veteran reported that he uses a cane and back brace due to his pain. The examiner found there was no ankylosis of his spine. The examiner also noted the Veteran has IVDS which resulted in episodes requiring bed rest having a total duration of at least one week but less than two weeks during the previous 12 months. In an August 2015 VA oncology note, the Veteran reported chronic low back pain with radiculopathy for 20 years. He reported undergoing injections, acupuncture, physical therapy, and wearing a brace, but he “just had to learn to live with” the pain. At the June 2016 hearing, the Veteran testified that he seeks a 100 percent rating for his back disability due to ankylosis of his spine. He testified that his son’s doctor defines ankylosis as having a crooked spine, either spinal stenosis or spondylitis, degenerative arthritis of the spine, and locking of the spine. He testified that he meets all four of these criteria. He also testified that he has constant pain, which he described as being rated a10 out of 10 for other people but that he is able to bear it. He testified that he has received injections of nerve blockers and periodic epidural pain shots. He also testified that because of the pain he has difficulty walking, doing household chores, and other activities of daily life. On February 2017 VA back conditions examination lumbosacral strain, mild early degenerative joint and disc disease in L3-L5 vertebrae, and right lower extremity radiculopathy were diagnosed. The Veteran reported “generally worsening back pain over time,” and reported having flare ups with “aching pain and stiffness becoming so severe on some days that it is difficult for him to get out of bed and move around.” The Veteran also reported functional impairment due to his back disability as difficulty washing dishes and cleaning his house, intolerance for heavy lifting, and poor tolerance for long car rides. On range of motion testing, forward flexion was to 40 degrees; extension was to 15 degrees; right lateral flexion was to 15 degrees; left lateral flexion was to 15 degrees; right lateral rotation was to 15 degrees; left lateral rotation was to 15 degrees. The examiner described that the range of motion contributed to functional loss because “poor forward flexion limits lifting ability, and reduced lateral flexion and rotation limit dexterity for general physical work.” The examiner noted the Veteran did not have pain on examination, there was no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the thoracolumbar spine, and there was no evidence of pain with weight bearing. The examiner described that functional loss was experienced with repetitive use over time due to pain, with no additional range of motion loss. Such functional loss was manifested in pain with extended walking which restricts the ability to continue. The examiner also noted that the Veteran was not being examined during a flare-up, but opined that the examination was medically consistent with the Veteran’s statements describing flare-ups. The examiner described that during flare-ups his pain significantly limited functional ability, but the examiner stated that he was unable to describe the limitation in terms of range of motion because the Veteran was not being examined during a flare-up and was not able to replicate the associated range of motion lost. The examiner also opined that he could not address the Veteran’s reported flare-ups on the February 2015 and May 2015 VA examinations because the February 2017 examiner was not present during those reported flare-ups. The examiner found that the Veteran did not have guarding, muscle spasm of the thoracolumbar spine, ankylosis of the spine, or IVDS, and did not use any assistive locomotion devices. In a December 2020 VA addendum medical opinion, the examiner stated that the Veteran’s medical record indicates that he has back pain and with flare ups, reports that he is unable to move around at all. The examiner also noted that between 2012 and the present, even without examining the Veteran, it would be reasonable to assume that the Veteran’s reports of being unable to move at all during flare ups and after repetitive use may translate to an estimated range of motion of 0-5 percent. The examiner stated she did not find anything in the medical records supporting persistent symptoms representing unfavorable ankylosis. The examiner also opined that there is evidence within the medical records that between 2012 and the present, there is decreased range of motion and functional loss during repetitive use and flare ups. The examiner also stated that there was no evidence or indication of ankylosis. Analysis Based on a review of the evidence, the Board has determined that a 50 percent rating is warranted for the Veteran’s service-connected lumbosacral strain. Most relevant, the Board has determined based on a review of the December 2020 medical opinion, it is clear that during flare-ups, the Veteran’s disability is markedly worse that during periods of non-flare ups. The December 2020 examiner noted that it is feasible that, going back as far as 2012, the Veteran’s flare ups may have caused restriction of the Veteran’s range of motion to 0-5 degrees. The Board finds that zero degree or percent flexion and extension during flare-ups is akin to fixed in flexion or extension. Further, based on a review of the record during flare-ups, the Veteran statements, as well as other lay statements, the evidence has established that for all intents and purposes, the Veteran is unable to move at all during flare-ups and other periods. The Board finds that the practical effect of the Veteran’s symptoms during flare-ups and at other times have also manifested difficulty walking because of a limited line of vision, inability to sit, stand, and sleep, breathing limitation due to pain, changes in gait, shooting pains and numbness going down into the his lower and upper extremities, and other symptoms noted in more detail above. As noted in the rating criteria, “zero degrees” is fixation of a spinal segment in the neutral position and always represents favorable ankylosis. 38 C.F.R. § 4.71a, Code 5242, Note (5). However, the rating criteria are not rigid standards which must fit precisely in each and every case, but rather guidelines with which VA uses to rate a particular Veteran’s disability and its effect on their ability to function socially and occupationally. In this case, after affording the Veteran the benefit of doubt, the Board finds a 50 percent rating more accurately represents the total disability picture for this Veteran’s spinal condition from at least June 14, 2011. The Board has arrived at June 14, 2011 because it is one year prior to the Veteran’s June 2012 informal claim for an increased rating and it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). Specifically, the May 2011 ER visit shows the Veteran was in significant distress due to the increase in severity of his lumbosacral strain symptoms, such that it required him to go to the ER. Therefore, the Board finds a 50 percent rating but not higher is warranted. The Board finds a higher rating is not warranted because the evidence of record as detailed above does not demonstrate unfavorable ankylosis of the entire spine, to include the cervical spine. Additionally, the Board notes that the Veteran is being granted TDIU beginning June 14, 2012 which provides full benefits to the Veteran from that date. 2. A total disability rating based on individual unemployability (TDIU), effective June 14, 2012, is granted. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Factual Background and Analysis The Veteran has established service connection for lumbosacral strain, evaluated as 50 percent disabling (as of this decision); irritable bowel syndrome, evaluated as 30 percent disabling; status post left knee injury, evaluated as 20 percent disabling; right leg radiculopathy associated with lumbosacral strain, evaluated as 20 percent disabling; left leg radiculopathy associated with lumbosacral strain, evaluated as 10 percent; impingement syndrome right shoulder, evaluated as noncompensable (0 percent); and ganglion cyst, left wrist, evaluated as noncompensable (0 percent). The combined schedular rating for the disabilities is 80 percent from June 2012. Therefore, the schedular criteria for a TDIU rating are met. The analysis proceeds to assessing whether the Veteran’s service-connected disabilities preclude his participation in substantially gainful employment consistent with his education and work experience. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, at the June 2016 hearing, the Veteran testified he was working as a part-time pizza delivery driver, earning about $600 a month, and he has a four-year bachelor’s degree in business administration. He also testified that his back condition prevents him from gaining employment in an office job because he can’t sit, stand, or lay in any one position for too long because his spine will lock up. In a May 2015 letter, the general manager of the Veteran’s restaurant wrote that he witnessed him “several times with great pain in his lower back to the point where” he could not make it completely through his shift as a driver. He also wrote that he may not be able to keep him employed because of the issues his back problems cause with scheduling drivers. Further, multiple VA examiners (noted in more detail above) have opined that the Veteran’s back condition has impacted his ability to work. The February 2015 examiner opined that “the Veteran is unable to perform heavy physical labor that requires prolonged standing, walking, or prolonged sitting. He needs to alternate positions.” The May 2015 examiner opined that he “is unable to perform jobs that require prolong standing greater than 30 minutes, walking more than a quarter mile, lifting more than 10 pounds, sitting for more than 30 minutes, driving more than one hour, and bending due to his lower back pain. The Veteran has currently missed multiple days of work and is currently working approximately 20-30 hours per week, which has decreased due to his current low back pain. Accordingly, the preponderance of the evidence demonstrates that the Veteran is not gainfully employed and has been precluded from obtaining and maintaining substantially gainful employment due to his service-connected disabilities, effective June 14, 2012. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.