Citation Nr: 21022755 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-00 879 DATE: April 19, 2021 ORDER For the rating period from September 1, 2009 to January 2, 2019, a higher initial disability rating in excess of 10 percent for service-connected degenerative changes of the lumbar spine with muscle strain (lumbar spine disability) is denied. For the staged initial rating period from January 2, 2019, a higher initial disability rating in excess of 40 percent for the service-connected lumbar spine disability is denied. From June 2, 2018 through July 12, 2019, a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. From June 2, 2018 through July 12, 2019, entitlement to special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. For the initial rating period from September 1, 2009 to January 2, 2019, the service-connected lumbar spine disability did not manifest as limitation of flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes having a total duration of at least two weeks. 2. For the rating period from January 2, 2019, the service-connected lumbar spine disability did not manifest as ankylosis of the lumbar spine or incapacitating episodes having a total duration of at least six weeks. 3. From June 2, 2018 through July 12, 2013, the Veteran was unable to maintain substantially gainful employment as a result of service connected posttraumatic stress disorder (PTSD). 4. From June 2, 2018 through July 12, 2013, the Veteran was in receipt of a TDIU based solely on the service-connected PTSD and had additional service-connected disabilities with a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. For the initial rating period from September 1, 2009 to January 2, 2019, the criteria for a higher initial disability rating in excess of 10 percent for the lumbar spine disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. For the initial rating period on appeal from January 2, 2019, the criteria for a staged higher initial disability rating in excess of 40 percent for the lumbar spine disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. Resolving reasonable doubt in the Veteran’s favor, from June 2, 2018 through July 12, 2019, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. 4. From June 2, 2018 through July 12, 2019, the criteria for SMC based on housebound status were met. 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1987 to February 1995, and from March 1995 to August 2009. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hunting, West Virginia, which, in pertinent part, granted service connection for a lumbar spine disability, effective September 1, 2009, and assigned an initial 10 percent disability rating. During the course of this appeal, in a November 2020 rating decision, the RO granted a higher staged initial disability rating of 40 percent from January 2, 2019. The back rating issue has been before the Board on multiple occasions, and in each instance was remanded for additional development. Review of the record reflects that all directed development was completed during the prior remand periods, and the instant matter is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decisions grants the earliest effective dates available at law for a TDIU and SMC at the schedular housebound rate, no further discussion of VA’s duties to notify and assist is necessary as to those issues. Further, as the back rating issues arise from the Veteran’s disagreement with the initial rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible and provided the Veteran with adequate VA back examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Initial Disability Rating Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has appealed from the initial rating assigned for the service connected lumbar spine disability. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 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). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The General Rating Formula provides for a 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar 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 provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range-of-motion of the lumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine; and a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The diagnostic codes for rating spine disabilities are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. During the pendency of this appeal, various portions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. The Board has considered whether these changes could result in a staged higher initial disability rating from the effective date of the regulation changes; however, the Board does not find the February 7, 2021 amendments to be relevant to the instant decision. Significantly, the amendments do not alter the General Rating Formula or the IVDS Rating Formula, which are the primary focus of the instant rating decision. 38 C.F.R. § 4.71a (2021). 1. Higher Initial Lumbar Spine Disability Rating in Excess of 10 Percent from September 1, 2009 to January 2, 2019 Having reviewed all the evidence of record, lay and medical, the Board finds that, for the rating period on appeal from September 1, 2009 to January 2, 2019, the service-connected lumbar spine disability did not manifest as limitation of flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes having a total duration of at least two weeks. The Veteran received a VA general medical examination in November 2010. Per the examination report, the Veteran had daily intermittent back pain at a level of five out of ten on the pain scale. The pain would occur in certain positions or after sitting or standing for an extended period of time. The Veteran did not receive treatment for the back and was not taking any medications. The Veteran denied flare-ups of pain, incapacitating episodes, or the use of a brace or other assistive device. Upon examination there were no additional neurological disorders, gait was steady, and there were no muscle spasms. Range of motion testing revealed objective evidence of painful motion at 80 degrees of flexion. Extension went to 30 degrees, right and left lateral rotation were to 30 degrees each, and right and left lateral flexion were to 30 degrees each. The total combined range of motion was to 240 degrees. There is no indication from the examination report that the Veteran had ankylosis of the spine, guarding of movement, or abnormal spinal contour. Per a February 2011 VA physical therapy consultation report, the Veteran complained of pain and stiffness in the back after moving and standing for prolonged periods of time. Range of motion testing was normal, with some pain at the end of extension. Strength was full, and the Veteran was noted to move well, was unhindered, and had normal gait. In a February 2011 notice of disagreement (NOD), and in the subsequent December 2012 VA Form 9, the Veteran argued that back symptoms were more in line with a 20 percent disability rating; however, the Veteran did not convey why he believed such a rating was warranted. The Veteran did not advance having additional range of motion lost due to flare-ups, muscle spasm, guarding, and/or incapacitating episodes. Various VA treatment records from 2011 through 2018 reflect that the Veteran continued to complain of, and received treatment for, back pain; however, such VA treatment records do not include range of motion testing, and do not diagnose ankylosis, incapacitating episodes, muscle spasm, and/or guarding. Per a June 2018 VA physical therapy consultation note, range of motion of the lumbar spine was within full limits; however, it was noted that the Veteran had difficulty returning to a standing position following flexion of the lumbar spine. A subsequent August 2018 VA chiropractic note showed forward flexion limited to 70 degrees due to pain, with extension, right and left lateral flexion, and right and left lateral rotation within normal limits. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period on appeal from September 1, 2009 to January 2, 2019, a disability rating in excess of 10 percent is not warranted for the service connected lumbar spine disability. Specifically, the evidence reflects that, prior to January 2, 2019, the service connected lumbar spine disability did not manifest as limitation of flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes having a total duration of at least two weeks. For these reasons, the Board finds that, prior to January 2, 2019, the preponderance of the evidence is against an initial disability rating in excess of 10 percent for the service connected lumbar spine disorder, and a higher initial disability rating from September 1, 2009 to January 2, 2019 must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Initial Rating for Lumbar Spine Disability from January 2, 2019 Having reviewed all the evidence of record, lay and medical, the Board finds that, for the initial rating period from January 2, 2019, the service-connected lumbar spine disability did not manifest as ankylosis of the lumbar spine or incapacitating episodes having a total duration of at least six weeks. The Veteran received a new VA spinal examination on January 2, 2019. Per the examination report, the Veteran conveyed having back pain that had a negative effect on the activities of daily living. Upon examination the Veteran did not have ankylosis of the spine or IVDS. Further, no additional neurological disabilities were diagnosed. Another VA spinal examination was performed in August 2019. Again, the Veteran conveyed having back pain that had a negative effect on the activities of daily living. Once again, examination did not show ankylosis of the spine, and no additional neurological disabilities were diagnosed. While the Veteran was diagnosed with IVDS at that time, there had been no incapacitating episodes in the previous 12 months. A final VA spinal examination occurred in February 2020. Relevant to the instant matter, there was again no diagnosis of ankylosis, incapacitating episodes due to IVDS, or other neurological disabilities. The Board has reviewed all the relevant evidence in the Veteran’s claims file, to include private and VA treatment records. Such evidence does not include treatment for ankylosis of the lumbar spine or incapacitating episodes. Further, the Veteran has not offered lay evidence descriptions of ankylosis or incapacitating episodes during the initial rating period on appeal. After a review of all the evidence, lay and medical, the Board finds that, for the rating period from January 2, 2019, a disability rating in excess of 40 percent is not warranted for the service connected lumbar spine disability. Specifically, the evidence reflects that, from January 2, 2019, the service connected lumbar spine disability did not manifest as ankylosis or incapacitating episodes having a total duration of at least six weeks. For these reasons, the Board finds the preponderance of the evidence is against a staged initial disability rating in excess of 40 percent for the service connected lumbar spine disability, for the period from January 2, 2019, and a higher initial disability rating for that period must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. Separate Compensable Disability Ratings The Board has considered whether the Veteran is entitled to separate compensable disability ratings for any objective neurologic, or other, disabilities related to the service connected lumbar spine disability. During the course of this appeal the Veteran was granted separate compensable disability ratings for bilateral lower extremity radiculopathy. As the Veteran has not expressed disagreement with the effective date and/or initial ratings assigned for the now service-connected bilateral lower extremity radiculopathy, the Board need not further address the question of separate compensable disability ratings for lower extremity radiculopathy in the instant decision. Further, review of the VA back examinations, along with all the other lay and medical evidence of record, conveys no diagnosis of any neurologic or other disabilities related to the service connected lumbar spine disability, beyond the aforementioned lower extremity radiculopathy. As such, no additional separate compensable disability ratings are warranted for any additional disabilities related to the service connected lumbar spine disability. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). 3. TDIU from June 2, 2018 to July 13, 2019 4. SMC Schedular Housebound Benefits from June 2, 2018 to July 13, 2019 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. 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. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 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: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). SMC at the schedular housebound rate is awarded when there is a 100 percent rating or TDIU based on a single service-connected disability, plus other service connected disabilities with a combined rating of at least 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1). By way of history, on July 13, 2019, during the course of this appeal, VA received a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, from the Veteran. Per the Form, the Veteran’s last day of full time employment was June 1, 2018. In a subsequent November 2019 rating decision, the RO granted a TDIU from July 13, 2019. Per the rating decision, the grant of a TDIU was based solely upon the Veteran’s service-connected PTSD, which the evidence showed caused significant occupational dysfunction. Further, the RO found that the Veteran had not worked since June 2018. The effective date of July 13, 2019 was chosen as that was the date VA received the VA Form 21-8940. After additional development was undertaken, in a November 2020 rating decision, the Veteran was granted service connection for fibromyalgia, rated as 40 percent disabling, effective September 1, 2009. As the Veteran had previously been granted a TDIU from July 13, 2019 based solely on the service-connected PTSD, and as the Veteran now had additional service connected disabilities with a combined rating of at least 60 percent, SMC at the schedular housebound rate was granted from July 13, 2019. While it is true that the VA Form 21-8940 was received on July 13, 2019, review of the Form indicates that, while the Veteran primarily attributed the unemployability to the service-connected PTSD, the Veteran stated that service-connected back pain would worsen the Veteran’s stress and PTSD symptoms, making it hard to perform employment responsibilities. The above evidence concerning back pain negatively impacting the Veteran’s employability was sufficient to raise the question of entitlement to a TDIU throughout the entire initial rating period on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, at the time of the November 2019 rating decision, the RO should have considered whether a TDIU was warranted for the time period beginning June 2, 2018, the day following the Veteran’s last day of full-time employment. As the RO failed to do so, the Board must now address whether a TDIU was warranted for the rating period from June 2, 2018 through July 12, 2019. During the rating period from June 2, 2018 through July 12, 2019, the Veteran had a combined disability rating of 70 percent or more, with at least one disability rated at 40 percent or more. As such, the combined disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) were met for the period from June 2, 2018 through July 12, 2019. (Continued on the next page)   Having reviewed all the evidence of record, lay and medical, the Board finds that, from June 2, 2018 through July 12, 2019, the Veteran was unable to maintain substantially gainful employment as a result of service connected PTSD. As discussed above, in the November 2019 rating decision, the RO found that symptoms of the service-connected PTSD caused significant occupational dysfunction to warrant the grant of a TDIU based upon that disability alone. Review of the lay and medical evidence of record supports that the PTSD symptoms present from July 13, 2019, were also present during the period from June 2, 2018 through July 12, 2019; therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU was warranted for the period from June 2, 2018 (the day following the Veteran’s last day of full-time employment) through July 12, 2019 (day prior to RO’s previous grant of a TDIU). 38 C.F.R. §§ 3.340, 3.341, 4.16. Further, as discussed above, the RO previously granted SMC at the schedular housebound rate from July 13, 2019, based upon the Veteran being entitled to a TDIU due solely to the service-connected PTSD, with additional service connected disabilities with a combined rating of at least 60 percent. As the instant decision finds that a TDIU based solely on the service-connected PTSD symptoms is warranted for the rating period from June 2, 2018 through July 12, 2019, and as the Veteran had additional service connected disabilities with a combined rating of at least 60 percent during the rating period from June 2, 2018 through July 12, 2019, the Veteran has met the schedular criteria for SMC at the housebound rate from June 2, 2018 through July 12, 2019, and the Board will grant SMC at the housebound rate for the period from June 2, 2018 through July 12, 2019. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.