Citation Nr: 21021209 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-11 804 DATE: April 12, 2021 ORDER Entitlement to an initial rating higher than 10 percent for a left ankle strain during the period prior to December 30, 2019 is denied. Entitlement to an initial rating higher than 20 percent for a left ankle strain during the period from December 30, 2019, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 15, 2019 is denied. Entitlement to a TDIU from March 15, 2019 through May 20, 2020 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a TDIU from May 21, 2020 is dismissed. FINDINGS OF FACT 1. During the period prior to December 30, 2019, the Veteran’s left ankle strain was manifested by no more than moderate limited motion of the ankle. 2. During the period from December 30, 2019, the Veteran’s left ankle strain is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 3. In a December 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to a TDIU; the Veteran was properly notified of this decision and she did not appeal it. 4. The Veteran's TDIU claim was received by VA on March 15, 2019. 5. The Veteran’s combined service-connected disability rating was 10 percent from November 13, 2008, 50 percent from March 9, 2009, 70 percent from March 15, 2019, 80 percent from December 30, 2019, 90 percent from January 16, 2020, and 100 percent from May 21, 2020. 6. During the period prior to March 15, 2019, the Veteran’s service-connected disabilities were not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant referral of a TDIU on an extraschedular basis. 7. During the appeal period from March 15, 2019 through May 20, 2020, according to the probative medical and other evidence of record, it is as likely as not that the Veteran’s service-connected disabilities prevented her from obtaining and retaining substantially gainful employment. 8. As a 100 percent combined schedular rating has been assigned for the period since May 20, 2020, the matter of entitlement to a TDIU rating is rendered moot. CONCLUSIONS OF LAW 1. During the period prior to December 30, 2019, the criteria for an initial rating in excess of 10 percent for left ankle strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. 2. During the period from December 30, 2019, the criteria for an initial rating in excess of 20 percent for left ankle strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.68, 4.71a, Diagnostic Code 5271. 3. The December 2013 AOJ decision that denied entitlement to a TDIU is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 4. During the period prior to March 15, 2019, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 5. Resolving reasonable doubt in her favor, the criteria are met for a TDIU during the appeal period from March 15, 2019 through May 20, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 6. For the period from May 21, 2020, the claim for a TDIU is dismissed as moot. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1975 to December 1976. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in May 2015 that in pertinent part, granted service connection and a 10 percent rating for left ankle strain; the Veteran appealed for a higher initial rating and an earlier effective date. In a September 2018 decision, the Board granted an earlier effective date of November 13, 2008 for the award of service connection for left ankle strain, and remanded the issue of entitlement to a higher initial rating to the AOJ for additional development. In September 2019, the Board remanded the issues of entitlement to a higher rating for left ankle strain and entitlement to a TDIU to the AOJ for additional development. In a January 2020 rating decision, the AOJ granted a higher 20 percent rating for service-connected left ankle strain, effective December 30, 2019, the date of a VA examination. The case was subsequently returned to the Board. 1. Entitlement to a higher rating for left ankle strain prior to December 30, 2019 2. Entitlement to a higher rating for left ankle strain from December 30, 2019 The AOJ has rated the Veteran’s service-connected left ankle strain as 10 percent disabling prior to December 30, 2019, and as 20 percent disabling from that date, under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. The Veteran contends that she is entitled to a higher 20 percent rating for left ankle strain because she has pain, limitation of motion, tenosynovitis, arthritis, weakness, and instability, and sometimes wears an ankle brace. See her June 2015 notice of disagreement, and correspondence dated in January 2014 and March 2016. In February 2020, she asserted that a higher 20 percent rating should be assigned for this disability from November 2008 to December 30, 2019. Although the Veteran has contended that she has weakness and poor balance due to her service-connected left ankle strain, as a lay person, she has not shown that she has specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of muscle weakness and poor balance are matters not capable of lay observation and require medical expertise to determine. Her lay statement is outweighed by the competent medical evidence, which shows that she has poor balance, left-sided weakness, and an irregular gait due to non-service-connected residuals of a June 2013 cerebrovascular accident (CVA, or stroke), with residual left hemiplegia and weakness of the entire left lower extremity. See private examinations dated in April 2014 and October 2015 by Dr. K., reports of October 2014 VA examinations, a March 2019 opinion by Dr. K., and an April 2019 VA outpatient treatment record. The Board finds that the medical evidence is more probative than the Veteran’s lay statements in this regard. Symptoms due to the non-service-connected residuals of CVA may not be considered when evaluating the service-connected left ankle strain. See 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disability for evaluating the service-connected disability is to be avoided). Muscle weakness throughout the entire left leg was noted on VA spine examination in October 2014, and the examiner stated that the Veteran could not safely keep her balance due to stroke residuals. On VA knee examination in October 2014, the examiner opined that the Veteran is weaker on her left side and her left leg muscle weakness and need for a walker is due to stroke residuals. Similar findings were also shown on VA examination in August 2019. 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. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (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). 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. 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, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. Under the prior rating criteria, the terms “moderate” and “marked” were not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion). A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees of plantar flexion). Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Period prior to December 30, 2019 During the period prior to December 30, 2019, the revised rating criteria of Diagnostic Code 5271 are inapplicable, since the revisions are not effective prior to February 7, 2021. On VA examination in February 2009, range of motion of the left ankle was as follows: dorsiflexion to 20 degrees, and plantar flexion to 45 degrees, on both active and passive motion. The examiner indicated that she could complete full range of motion without reduction in joint excursion, weakness or fatigability, and there was no loss of coordination or crepitus. She complained of pain throughout plantar flexion. Eversion was to 20 degrees, and inversion was to 30 degrees, without reduction of joint excursions after four repetitions. The examiner stated that there was no evidence of objective weakness or instability of the ankle. An X-ray study showed no significant bony or soft tissue abnormality of the left ankle. She did not use a crutch, brace, or cane. On VA examination in June 2009, the left ankle muscles had normal strength, and the examiner noted that the Veteran was frail, with generalized decalcification of the bones shown on X-ray study, and osteoporosis. VA outpatient treatment records dated from 2009 to 2010 reflect that the Veteran complained of left ankle pain and instability, and was given an ankle brace. A June 2010 podiatry note reflects that her left ankle had increased inversion; the diagnostic assessment was a hypermobile left ankle. On VA examination in May 2014, range of motion of the left ankle was as follows: dorsiflexion to 20 degrees, and plantar flexion to 40 degrees. The examiner stated that there were contributing factors of pain, weakness, fatigability and/or incoordination, with additional limitation of functional ability of the ankle joint during flare-ups or repeated use over time of approximately 5 degrees. The examiner also opined that some of the limitation of motion and weakness of the left ankle was due to non-service-connected residuals of a stroke. A May 2014 X-ray study of the left ankle was normal. By a letter dated in March 2019, Dr. K. indicated that the Veteran had pain and instability of her ankle requiring her to use a walker for ambulation which provides stability. Ambulation worsened the pain and required her to use a scooter at the grocery store. He indicated that her condition has been complicated by the stroke she had in 2013 with resulting weakness on the left side of her body, including her legs. She tried to wear an ankle brace as well as a knee brace for stability, but it limited her ability to move. He opined that her left ankle disability limited her ability to function. On VA examination in July 2019, range of motion of the left and right ankles was normal, with 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Pain was noted on dorsiflexion of the left ankle, but the pain did not result in or cause functional loss. The examiner noted that the Veteran complained of pain throughout plantar flexion, and there was pain on weightbearing. There was tenderness over the dorsum of the foot in the area of a surgical scar. The examiner stated that pain, fatigue, and lack of endurance limited her functional ability after repetitive use, but also stated that there was no additional limitation of motion after repetitive use. The Veteran reported chronic unremitting left foot pain, but did not report flare-ups of the ankle. The examiner stated that tests for instability of the left ankle were negative, and that an X-ray study was negative for arthritis of the ankle, bony abnormality, or calcified ligaments. The examiner opined that the Veteran's disability involving motions of the left foot and ankle is entirely related to her surgical treatment for a left foot condition and do not reflect primary left ankle pathology, which is apparent on examination and by radiograph. The examiner opined that the Veteran does not have a current diagnosis of ankle strain, and opined that her diffuse foot complaints were related to her left foot condition, not the left ankle. On VA examination on December 30, 2019, range of motion of the right ankle was as follows: 10 degrees of dorsiflexion and 30 degrees of plantar flexion, with no pain. Range of motion of the left ankle was as follows: 5 degrees of dorsiflexion and 10 degrees of plantar flexion, with pain on dorsiflexion and plantar flexion that caused functional loss. After repetitive-use testing, there was no additional loss of function or range of motion. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was pain on weightbearing. The examiner estimated that there was an additional limitation of 5 degrees in dorsiflexion and plantar flexion during flare-ups. There was normal strength in the left ankle. On VA examination in October 2020, range of motion of the left ankle was normal on active and passive motion, with dorsiflexion to 20 degrees, and plantar flexion to 45 degrees, with no pain noted on examination. There was no additional limitation of motion after repetitive use, and no objective evidence of pain on non-weightbearing. The examiner stated that tests for instability of the left ankle were negative. The Board finds that during the rating period prior to December 30, 2019, the preponderance of the evidence is against a rating in excess of 10 percent for left ankle strain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, instability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that flare-ups caused pain on walking, spasms, a sticking sensation, and swelling (see May 2014 VA examination) would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. Range of motion of the left ankle was full on VA examinations in February 2009 and July 2019, and no worse than dorsiflexion to 15 degrees, and plantar flexion to 35 degrees throughout this part of the rating period, even with consideration of additional limitation of motion during flare-ups. As such, the Board concludes that the evidence is consistent with moderate limitation of motion, and a rating in excess of 10 percent is not warranted based on functional impairment at any time prior to December 30, 2019. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Specifically, the evidence does not show ankylosis, malunion or nonunion of the tibia and fibula, malunion of the os calcis or astragalus, or astragalectomy, which would be required for application of Diagnostic Codes 5270, 5262, 5272, 5273 or 5274. In sum, the preponderance of evidence is against assigning an initial rating in excess of 10 percent for left ankle strain at any time prior to December 30, 2019, and the claim for a higher initial rating prior to December 30, 2019 is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Period from December 30, 2019 During the period from December 30, 2019, neither the former nor the revised rating criteria is more favorable to the Veteran, since under the old and new rating criteria of Diagnostic Code 5271, the maximum rating for limitation of motion of the ankle is 20 percent. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Specifically, the evidence does not show ankylosis, malunion or nonunion of the tibia and fibula, malunion of the os calcis or astragalus, or astragalectomy, which would be required for application of Diagnostic Codes 5270, 5262, 5272, 5273 or 5274. During the period from December 30, 2019, as the Veteran already has the maximum schedular disability rating, the appeal is denied. Moreover, the “amputation rule” set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. In this case, the Veteran has multiple service-connected disabilities of the left leg. During the period from December 30, 2019 until February 24, 2020, the Veteran's service-connected disabilities of the left lower leg included bilateral pes planus (rated 30 percent), left ankle strain (20 percent), and left foot scar (10 percent), and the left lower extremity had a combined rating of 40 percent during this period. See 38 C.F.R. § 4.25. Since then, the AOJ has granted service connection for several additional disabilities of the left lower extremity: three left hip disabilities (rated 10 percent, 0 percent, and 0 percent), a left knee disability (10 percent), effective February 24, 2020, and left lower extremity radiculopathy (20 percent), effective May 21, 2020. The Veteran’s combined rating for her left lower extremity disabilities below the knee may not exceed 40 percent. See 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5165. Thus, pursuant to the amputation rule, the 40 percent combined rating for the left lower extremity disabilities is the maximum rating available, and a higher rating for left ankle strain is precluded. TDIU 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The United States Court of Appeals for Veterans Claims (Court) recently defined “substantially gainful employment,” holding that there is both an economic and a noneconomic component; 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question 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, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Whether a service-connected disability or disabilities renders a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). 3. Entitlement to a TDIU prior to May 21, 2020 The Veteran contends that she is unable to work due to service-connected disabilities, and that a TDIU is warranted from November 2008. See March 2019 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). On November 13, 2008, VA received the Veteran’s informal claim for an increased rating for a service-connected left foot disability. The Board subsequently determined that this document was also a claim for service connection and a compensable rating for a left ankle disability. See September 2018 Board decision. In a November 2013 VA Form 21-8940, the Veteran asserted that she was unable to work due to her left ankle disability, left foot disability, depression, and back pain. The Board finds that an informal TDIU claim was reasonably raised on November 13, 2008. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, as distinguished from the facts in Rice, a December 2013 rating decision denied entitlement to a TDIU. Since a timely notice of disagreement was not received from the Veteran with regard to this issue and new and material evidence was not received within one year of the date on which it was issued, the December 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. The Board finds that after the December 2013 rating decision, a TDIU claim was not received from the Veteran or raised until March 15, 2019, when VA received the Veteran’s TDIU claim. The effective date for an increased rating claim, including a TDIU claim, will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010); Hurd v. West, 13 Vet. App. 449 (2000). Thus, the period for consideration is from March 15, 2018. In a November 2013 VA Form 21-8940, the Veteran asserted that she was unable to work due to a left ankle disability, left foot disability, depression, and back pain. She reported that she worked for Cingular Wireless on a full-time basis from September 1998 to August 2004, and left her last job due to her disability. She completed three years of college, and had additional training in electronic engineering, computer programming, computer operations, and as a make-up artist. In the March 2019 VA Form 21-8940, the Veteran asserted that she was unable to work due to disabilities of the back, left ankle, flat feet, left knee, right arm and shoulder, and right ankle, and last worked full-time in March 2004, in customer service and technical support. The Veteran’s combined service-connected disability rating was 10 percent from November 13, 2008, 50 percent from March 9, 2009, 70 percent from March 15, 2019, 80 percent from December 30, 2019, 90 percent from January 16, 2020, and 100 percent from May 21, 2020. The threshold schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) are met during the period from March 15, 2019, since the Veteran had one disability rated at 40 percent, and sufficient additional disability to bring the combined rating to 70 percent. During the period from November 13, 2008 to March 9, 2009, the established service-connected disabilities were left ankle strain (rated 10 percent disabling), a lumbar spine disability (noncompensable), a left foot scar (noncompensable), and pes planus (noncompensable), and the combined disability rating was 10 percent. During the period from March 9, 2009 to March 15, 2019, the established service-connected disabilities were degenerative disc disease of the lumbar spine (40 percent disabling), left ankle strain (rated 10 percent disabling), a left foot scar (10 percent from June 4, 2009), and pes planus (noncompensable), and the combined disability rating was 50 percent. During the period from March 15, 2019 to December 30, 2019, the established service-connected disabilities were degenerative disc disease of the lumbar spine (40 percent disabling), pes planus (30 percent), left ankle strain (10 percent), and a left foot scar (10 percent), and the combined disability rating was 70 percent. During the period from December 30, 2019 to February 24, 2020, the established service-connected disabilities were degenerative disc disease of the lumbar spine (40 percent disabling), bladder incontinence (40 percent disabling from January 16, 2020), pes planus (30 percent), left ankle strain (20 percent), a left foot scar (10 percent), right ankle sprain (10 percent), and the combined disability rating was 80 percent from December 30, 2019, and 90 percent from January 16, 2020. The evidence shows that the Veteran completed two years of college, with additional training in electronic engineering, computer programming, computer operations, and as a make-up artist, and work experience as a customer service representative and in technical support. Prior to March 15, 2019, the threshold schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) are not met since the Veteran did not have one disability rated at 40 percent, and sufficient additional disability to bring the combined rating to 70 percent. Upon review of the record, the Board finds that during the period prior to March 15, 2019, VA and private medical records, and the Veteran’s own statements, show that she had multiple significant non-service-connected physical and psychiatric disabilities which affected her ability to work, to include a left eye disability, a right shoulder disability, depression, residuals of a CVA, to include left hemiplegia, and fibromyalgia. Records from the Social Security Administration (SSA) reflect that in May 2009, the SSA determined that the Veteran became disabled on March 22, 2004 due to left eye blindness status post multiple surgeries, stress incontinence, and a right torn rotator cuff tear. When applying for SSA benefits, the Veteran reported that the following disabilities limited her ability to work: legal blindness in the left eye, headaches, and blackouts. Medical records considered by SSA include a September 2004 letter from her private physician, K.G., MD, who opined that the Veteran had been disabled and unable to perform her customary work since April 7, 2004 due to a left eye condition. It was noted that after she underwent secondary intraocular lens implantation, she had problems with depth perception. In December 2004, Dr. K. stated that her chronic eye pain and decreased vision prevented her from performing any meaningful duties at work, and she also had right shoulder pain which she attributed to improper workstation adjustments. In August 2005, a private physician, J.G., MD, provided an opinion regarding the Veteran’s worker’s compensation claim, and opined that she had a right shoulder disability, a cervical spine disability, carpal tunnel syndrome and ocular problems. The Board finds that referral for extraschedular consideration of TDIU is not warranted during the rating period prior to March 15, 2019, as the weight of the evidence does not show that she was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities during this period. VA examiners during this period repeatedly opined that the majority of her functional impairment was due to non-service-connected residuals of a CVA. During the period from March 15, 2019 through May 20, 2020, with regard to the economic component of substantially gainful employment, the record reflects that the Veteran was unemployed throughout the rating period on appeal. Service connection was granted for additional disabilities during this period, and her established service-connected disabilities were shown to have increased in severity. With regard to the noneconomic component of substantially gainful employment during this period, after resolving reasonable doubt in the Veteran’s favor, the evidence supports a finding that the Veteran was not capable of performing the physical and mental acts required by employment and was unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. The evidence reflects that the Veteran has impairment due to both service-connected and non-service-connected physical and psychiatric disabilities. Based on the lay and medical evidence of record, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that during the period from March 15, 2019 through May 20, 2020, the weight of the evidence suggests that the Veteran’s service-connected disabilities, especially in combination, are of a nature and severity as to preclude her from engaging in the type of work for which she is qualified by reason of past education, work experience and training. VA examinations and medical records indicate that the manifestations and combined limitations of the Veteran’s service-connected disabilities prevented her from obtaining or following substantial gainful employment, and the criteria for a TDIU are met under 38 C.F.R. § 4.16 (a) from March 15, 2019 through May 20, 2020. 4. Entitlement to a TDIU since May 21, 2020 During the period from May 21, 2020, the Veteran is already in receipt of a combined schedular 100 percent rating for her service-connected disabilities. Therefore, a TDIU may not be assigned during this period. It is not shown that the Veteran has a single, separate disability that would, by itself, create the basis for an award of a TDIU. Although VA has a duty to maximize a claimant’s benefits, the Veteran is already in receipt of the maximum benefits available during this period. Thus, the claim for TDIU due to service-connected disabilities during this period is moot. See 38 C.F.R. § 4.16 (a); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.