Citation Nr: 21022616 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-14 312 DATE: April 16, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted from February 22, 2010 to December 16, 2010. Entitlement to an initial rating in excess of 50 percent for PTSD is denied. Entitlement to a 20 percent rating, but no higher, for degenerative disease of the lumbar spine (back disability) is granted from February 22, 2010 to March 11, 2020. Entitlement to a rating in excess of 20 percent for back disability is denied. Entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy is granted from November 11, 2019. Entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy is granted from November 11, 2019. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD has been manifested by no more than occupational and social impairment with reduced reliability and productivity throughout the appeal period. 2. From February 22, 2010 to March 11, 2020, when considering pain, flare-ups, and corresponding functional impairment, the Veteran’s back disability has more nearly approximated forward flexion to 40 degrees, in addition to muscle spasm resulting in abnormal gait or abnormal spinal contour. 3. The Veteran’s back disability has not been manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the appeal period. 4. The Veteran’s left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve since November 11, 2019. 5. The Veteran’s right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve since November 11, 2019. 6. The Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 50 percent rating, but no higher, for PTSD from February 22, 2010 to December 16, 2010 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an initial rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9411. 3. The criteria for entitlement to a 20 percent rating, but no higher, for a back disability from February 22, 2010 to March 11, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5242. 4. The criteria for entitlement to a rating in excess of 20 percent for A back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5242. 5. The criteria for entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy from November 11, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 6. The criteria for entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy from November 11, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 7. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2000 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claims for further development in November 2019 and December 2020. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 1. Entitlement to an initial 50 percent rating, but no higher, for PTSD is granted from February 22, 2010 to December 16, 2010. 2. Entitlement to an initial rating in excess of 50 percent for PTSD is denied. The Veteran’s PTSD is rated pursuant to 38 C.F.R. § 4.130, DC 9411, which is rated under the General Rating Formula for Mental Disorders. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). By way of background, an August 2010 rating decision awarded service connection for PTSD and assigned a 30 percent rating, effective February 22, 2010. A June 2012 rating decision increased the rating to 50 percent, effective December 16, 2010. The appeal period before the Board is from the effective date of service connection, or February 22, 2010. From February 22, 2010 to December 16, 2010, an increased 50 percent rating for the Veteran’s PTSD is warranted, based on symptoms such as panic attacks more than once a week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See July 2010 VA examination report. Such symptoms support an award of a 50 percent rating for this period. A rating in excess of 50 percent is not warranted at any point during the appeal period, as the Veteran’s symptoms are not of such a severity, duration or frequency to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In this regard, there is no evidence of suicidal or homicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic attacks or depression affecting the ability to function independently; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar severity, frequency, and duration. On the contrary, the record shows normal speech and communication skills, cooperative behavior, and normal thought processes. The Veteran’s hygiene has been appropriate and within normal limits, and he has been oriented at all times. Regarding social impairment, the Veteran indicated having a good relationship with his wife and described her as being extremely supportive, stating that she gives him verbal and emotional support when he feels anxious or depressed. See July 2010 and February 2011 VA examination reports. He denied being close to other family members and reported difficulty getting along with his parents. Id; see also February 2015 VA examination report. However, he reported having some close friends and indicated making new connections and friends since moving to Alaska in 2017. Id; see also March 2020 VA examination report. Overall, the Board finds the Veteran has difficulty, but not an inability, to establish and maintain effective work and social relationships, consistent with a 50 percent rating. While difficulty in adapting to stressful circumstances (including work or a work-like setting) has been endorsed, the Board emphasizes that the Veteran reported attending college full-time since being laid off in October 2009 and states that he has been doing well and getting good grades. See February 2011 and December 2011 VA examination reports. At the February 2015 VA examination, the Veteran stated that his schooling required a lot of attention and concentration and that he continued to go, but on and off. During that time, he also reported being employed as a security officer for a year but decided to leave because the work was tedious, he experienced poor concentration and focus, and did not feel like an asset to the company. Thereafter, the Veteran reported obtaining a full-time job in 2017 and indicated that he was fast learner and had good productivity. See March 2020 VA examination report. The Board notes that some loss of industrial capacity is contemplated in the 50 percent rating currently assigned. 38 C.F.R. § 4.1. While the Board does not doubt that the Veteran experiences difficulty with stressful circumstances, given the above educational and work history and remaining evidence, this symptom, alone, does not equate to occupational and social impairment with deficiencies in most areas. With respect to near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the record indicates the Veteran has panic attacks, depressed mood, and anxiety, but it is not near-continuous. During the appeal period, the Veteran endorsed severe depression when he was not busy, anxiety regarding his overall health, occasional panic attacks, as well as periods of episodic depression. However, there is no indication in the record of an inability to function independently, appropriately and effectively due to such symptoms. Thus, while the Veteran experiences panic attacks, depression, and anxiety, the Board finds his symptoms are contemplated by the 50 percent rating and are not so severe as to affect his ability to function independently, appropriately and effectively, nor could they be considered “near-continuous” in nature. As to impaired impulse control, the Veteran reported that he angers easily and irritability with some students at school. See July 2010 VA examination report. The evidence shows no history of physical violence, inappropriate behavior, or danger of hurting self or others during the appeal period. Furthermore, treatment records consistently reflect normal thought content and processes, as well as intact insight and judgment. Thus, while the Veteran struggles with transient and intermittent periods of irritability, the Board finds his symptoms do not correlate with impaired impulse control needed for a higher evaluation. Notably, VA examiners have found, at worst, that the Veteran experiences occupational and social impairment with reduced reliability and productivity due to his PTSD, which is consistent with the above-cited evidence of record and contemplated by his current 50 percent disability rating. Thus, for reasons outlined above, a rating in excess of 50 percent is denied. 3. Entitlement to a 20 percent rating, but no higher, for back disability is granted from February 22, 2010 to March 11, 2020. 4. Entitlement to a rating in excess of 20 percent for back disability is denied. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The Veteran’s back disability is evaluated pursuant to DC 5242, which is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Pursuant to that formula, as relevant here, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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, 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 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. The Board notes that the General Rating Formula rating criteria was not affected by the February 7, 2021 amendments. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Id., Note (1). Unfavorable ankylosis is defined by VA regulation as a condition in which the 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 on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id., Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. By way of background, a March 2005 rating decision awarded service connection for a back disability and assigned a noncompensable rating, effective September 13, 2004. A June 2012 rating decision increased the rating to 10 percent, effective December 16, 2010, and an August 2020 rating decision increased the rating to 20 percent, effective March 11, 2020. The current appeal period before the Board begins on February 22, 2010, the date VA received the Veteran’s claim for an increased rating, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in June 2010 and December 2010, the most recent March 2020 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, only the March 2020 VA examination report will be utilized for evaluation of the Veteran’s back disability based on range of motion, as it is the only adequate examination of record. In this regard, the Board emphasizes that the prior non-compliant 2010 examinations show range of motion findings less favorable than those in the March 2020 VA examination report. Thus, there is no prejudice to the Veteran in not considering these examinations to rate his disability based on limitation of motion and DeLuca factors. At the March 2020 VA examination, the Veteran reported sharp pain in the lower back, tightness, and guarding, as well as flare-ups in which his back “locks up” and described functional loss including difficulty with bending and lifting limited to 25 pounds. Physical examination revealed forward flexion to 75 degrees, with pain, but no additional loss of motion upon repetition. The examiner indicated that pain and fatigue would additionally limit the Veteran’s lumbar range of motion to 60 degrees of forward flexion with repetitive use over time and to 40 degrees of forward flexion during a flare-up. Additionally, the examiner found evidence of pain with weight-bearing and muscle spasm resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy or ankylosis. The Veteran’s occasional use of a back brace was noted. Here, when considering the competent and credible reports of limited lumbar spine motion and pain during flare-ups, coupled with the examiner’s assessment of additional decrease in mobility of forward flexion to 40 degrees due to painful flare-ups, in addition to muscle spasm resulting in abnormal gait or abnormal spinal contour, a 20 percent rating is warranted throughout the appeal period. However, a rating in excess of 20 percent is not warranted at any point, as the evidence does not indicate forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, even when considering additional functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and during a flare-up. In this regard, even when considering DeLuca factors, the Veteran retained motion in the thoracolumbar spine and any additional limitation due to pain and fatigue does not more nearly approximate a finding of forward flexion to 30 degrees or less or ankylosis. Indeed, the March 2020 VA examination report showed flexion limited to no less than 40 degrees during a flare-up, despite the Veteran’s reports of his back “locking up,” and no less than 60 degrees following repetitive motion, and no evidence of ankylosis was noted. Accordingly, a rating higher than 20 percent rating is precluded. Additionally, the Board has considered whether evaluating the Veteran’s back disability under the Formula for Rating IVDS (IVDS Formula) would be more beneficial to him. However, there is no evidence of record of IVDS or any incapacitating episodes as contemplated within the applicable rating criteria, let alone 4 weeks over a period of 12 months of such episodes, to allow for assignment of a 40 percent rating, and the Veteran does not contend otherwise. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Thus, an increased rating is not available under the IVDS Formula. 5. Entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy is granted from November 11, 2019. 6. Entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy is granted from November 11, 2019. Regarding separate neurological manifestations, the Board finds that separate 10 percent ratings are warranted for the left and right lower extremity, effective November 11, 2019. In this regard, on November 11, 2019, a private treatment record shows that the Veteran was diagnosed with radiculopathy in the lumbosacral region. There is no indication of a prior diagnosis of radiculopathy of record. While the record does not identify which extremity was affected, the Veteran testified that he experienced pain and numbness radiating from his back to down his legs. See Board Hearing Transcript at 32-33. Furthermore, although the impaired nerve was also not identified, since the sciatic nerve is the closest to the lumbar spine, the Board will rate the Veteran’s lower extremities under DC 8520, as that more accurately captures the nerves associated with his back disability. DC 8520 evaluates paralysis of the sciatic nerve, and provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8520. Affording the Veteran the benefit of the doubt, the Board finds that the evidence is demonstrative of no more than mild incomplete paralysis of the sciatic nerve for the left and right lower extremity since November 11, 2019, when such condition was first diagnosed, which is consistent with no higher than 10 percent ratings. Ratings in excess of 10 percent are not warranted at any point during the appeal period, nor is a separate rating prior to November 11, 2019 warranted, as contemporaneous examination reports and treatment records do not indicate signs or symptoms of moderate incomplete paralysis and the Board’s award of the 10 percent ratings are based on the Veteran’s own characterization of mild symptomatology at his 2019 Board hearing, in which he reported lower extremity symptoms manifested primarily by numbness, without any indication of more severe symptomology. Notably, the Veteran denied any numbness, paresthesia, and other radicular symptoms during the 2010 and 2020 VA examinations and there is no other competent evidence to support a separate rating during the earlier portion of the appeal period. No other separately compensable neurological rating is warranted based on the record. 7. Entitlement to a TDIU is denied. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Service connection is currently in effect for PTSD, obstructive sleep apnea, lumbar spine disability, bilateral ankle disability, and left knee disabilities, for a combined rating of 80 percent from February 22, 2010 (based on the ratings granted herein) and 90 percent from April 21, 2014. Thus, the Veteran meets the criteria for consideration of a TDIU on a schedular basis for the entire appeal period beginning February 22, 2010. 38 C.F.R. § 4.16(a). Accordingly, what remains to be determined is whether the functional impairment associated with his disabilities are of such nature and severity as to preclude substantially gainful employment. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The competent evidence of record does not reflect that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Instead, the evidence reflects that the Veteran has been employed during the appeal period. In this regard, the evidence reflects that the Veteran last worked full time on November 2, 2009. See February 2012 VA Form 21-4192. Thereafter, at a February 2015 VA examination, the Veteran reported working as a security officer for a year until the early part of 2013. The Veteran reportedly obtained a job at a prison and was seeking an evaluation for hiring purposes, but it is unclear if he actually began employment there. See September and October 2016 VA treatment records. Currently, the Veteran reports working full-time at a stable job with the State of Alaska since 2017 and he denied any occupational impairment due to PTSD. See March 2020 VA examination report. The Board acknowledges that the Veteran may have been unemployed during the appeal period and that his service-connected disabilities impact his occupational functioning. However, unemployment and/or underemployment are not equivalent to unemployability. Furthermore, considerable industrial impairment due to his disabilities are already contemplated in the ratings currently assigned. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Here, there is no indication that the Veteran is precluded from performing the physical and mental acts required by employment due to his service-connected disabilities, particularly because the evidence does not indicate that he is currently unemployed. Accordingly, Board finds that the economic and noneconomic components of entitlement to a TDIU are not met. Therefore, the preponderance of the evidence is against the claim, and entitlement to a TDIU is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.