Citation Nr: 21025692 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 00-14 513A DATE: April 28, 2021 ORDER An effective date prior to July 9, 2010, for the award of service connection for posttraumatic stress disorder (PTSD) with persistent depressive disorder, with melancholic features (hereinafter, psychiatric disability) is denied. An initial rating in excess of 50 percent prior to March 9, 2018, and in excess of 70 percent from March 9, 2018, to October 1, 2018, for psychiatric disability is denied. Service connection for degenerative arthritis of the spine and degenerative disc disease of the lumbar spine (hereinafter, lumbar spine disability) is granted. From July 9, 2010, to October 1, 2018, a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to a TDIU prior to July 9, 2010, is remanded. Entitlement to nonservice-connected pension benefits is remanded. FINDINGS OF FACT 1. In a final decision issued in October 2000, the Agency of Original Jurisdiction (AOJ) denied service connection for psychiatric disability, characterized as adjustment disorder with disturbance of emotions and conduct and a personality disorder. 2. Following the final October 2000 rating decision, the Veteran did not file a formal or informal claim for service connection for psychiatric disability prior to the receipt of his informal claim on July 9, 2010. 3. Prior to March 9, 2018, the Veteran’s psychiatric disability was manifested by psychiatric symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 4. From March 9, 2018, to October 1, 2018, the Veteran’s psychiatric disability was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 5. Resolving all doubt in the Veteran’s favor, his current lumbar spine disability, diagnosed as degenerative arthritis of the spine and degenerative disc disease of the lumbar spine, is related to his period of honorable military service. 6. From July 9, 2010, to October 1, 2018, resolving all doubt in his favor, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The October 2000 rating decision that denied service connection for psychiatric disability, characterized as adjustment disorder with disturbance of emotions and conduct and a personality disorder, is final. 38 U.S.C. § 7105(c) (1991) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2000) [(2020)]. 2. The criteria for an effective date prior to July 9, 2010, for the award of service connection for psychiatric disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an initial rating in excess of 50 percent prior to March 9, 2018, and in excess of 70 percent from March 9, 2018, to October 1, 2018, for psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for service connection for degenerative arthritis of the spine and degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. From July 9, 2010, to October 1, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1991 to February 1998. While the Veteran has an additional period of active duty from September 30, 1996, to February 17, 1998, his discharge was determined to be under other than honorable conditions for Department of Veterans Affairs (VA) purposes and, therefore, a bar to VA benefits. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in October 1999, October 2000, February 2013, and November 2014. In October 1999, the Agency of Original Jurisdiction (AOJ), in pertinent part, denied service connection for a lumbar spine disorder, and the October 2000 rating decision denied entitlement to nonservice-connected pension benefits. The Board denied such claims in a December 2005 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2007 Memorandum Decision, the Court vacated the Board’s December 2005 decision and remanded the appeal to the Board for further development. In April 2009, the Board remanded the issues and denied the claims in a September 2011 decision. The Veteran thereafter appealed the denials to the Court, who, in an April 2013 Memorandum Decision, vacated the September 2011 decision and remanded the claims for the Board for additional development. The Board remanded such issues in December 2013 and June 2016. In May 2019, the Board again remanded those issues, as well as the issues of entitlement to service connection for bilateral pes planus and a TDIU. In October 2019, the Board remanded the issues of entitlement to an earlier effective date for the award of service connection for psychiatric disability and initial increased ratings for such. During the course of the appeal, in a November 2018 rating decision, the AOJ assigned an increased rating of 100 percent for psychiatric disability, effective October 1, 2018, and awarded special monthly compensation based on housebound criteria, effective October 1, 2018. Such awards nullify the Veteran’s eligibility for a TDIU as of October 1, 2018. Further, although VA received the Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in May 2013, the instant appeal period stems from the Veteran’s initial claims for service connection, which were received on December 3, 1997. Therefore, the question of entitlement to a TDIU prior July 9, 2010, remains on appeal, and the Board has characterized the issue accordingly. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). The case now returns for further appellate review. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claims decided herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Effective Date Prior to July 9, 2010, for Psychiatric Disability The Veteran asserts an effective date of February 18, 1998, is proper for the award of service connection for his psychiatric disability. By way of background, VA received the Veteran’s original claim for service connection for psychiatric disability in May 2000. Thereafter, in an October 2000 rating decision, the AOJ considered the Veteran’s service treatment records, post-service treatment records, and examination reports and found the evidence did not show the Veteran’s current condition was related to his period of honorable service. Consequently, service connection for psychiatric disability, characterized as adjustment disorder with disturbance of emotions and conduct and a personality disorder, was denied. In November 2000, the Veteran was advised of the decision and his appellate rights. Although the Veteran entered a notice of disagreement with the October 2000 rating decision in November 2000, he specifically indicated that he did not wish to pursue an appeal of the issue of service connection for psychiatric disability. In fact, the Veteran limited a February 2001 request for reconsideration of major depression for “non-service connection purposes” only. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the October 2000 rating decision is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2000) [(2020)]. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). VA received the Veteran’s application to reopen the claim of entitlement to service connection for psychiatric disability on July 9, 2010, and in a February 2013 rating decision, the AOJ granted service connection for dysthymic disorder with an effective date of July 9, 2010, the date of receipt of such claim. Additionally, the Board granted entitlement to the same effective date for the award of service connection for psychiatric disability in an October 2019 decision. Here, the Board finds that there is no document of record that can be construed as a formal or informal claim for service connection for an acquired psychiatric disorder that was received prior to the receipt of his application to reopen on July 9, 2010. As noted above, various correspondence and procedural documents discuss entitlement to nonservice-connected pension benefits based on the Veteran’s psychiatric disability subsequent to the final October 2000 rating decision. However, the Board finds the voluminous evidence of record does not demonstrate a statement of intent to seek compensation benefits on a service-connected basis, identifying the sickness, disease, or injuries for which compensation was sought, at least at a high level of generality (emphasis added). Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). Although the Veteran’s representative, in a December 2006 brief, asserted the Board failed to provide adequate reasons or bases for denying service connection for psychiatric disability, such was submitted to the Court in connection with an appeal regarding nonservice-connected pension benefits. The record does not demonstrate that correspondence reflecting a similar assertion was received directly by the Board or even VA in general during the period following the October 2000 rating decision but prior to July 9, 2010. Further, despite the Veteran’s identification of medical records reflecting a current diagnosis of a psychiatric disorder, the Board finds he specifically confined his claim to that of entitlement to nonservice-connected benefits. Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019). In particular, the November 2000 statement cited above shows that, despite his physician’s allegedly favorable opinion linking a psychiatric disability to service, the Veteran requested to have his application “remain the same” (i.e. for the purpose of nonservice-connected pension benefits only) in order to avoid further delay. Consequently, the Board finds that an effective date prior to July 9, 2010, for the award of service connection for psychiatric disability is not warranted. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Increased Evaluation of Psychiatric Disability The Veteran contends the severity of his psychiatric disability warrants higher ratings than those currently assigned. The instant appeal stems from the initial award of service connection effective July 9, 2010. The Veteran’s psychiatric disability is evaluated as 50 percent disabling prior to March 9, 2018, 70 percent disabling from March 9, 2018, to October 1, 2018, and 100 percent disabling thereafter pursuant to Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Given that the 100 percent disabling rating assigned on and after October 1, 2018, is the maximum rating available for this disability, that period is no longer on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Pertinent to the instant case, the General Rating Formula for Mental Disorders provides a 50 percent rating when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). Prior to March 9, 2018, the Veteran’s psychiatric disability is rated as 50 percent disabling. Therefore, to warrant a higher rating, the evidence must show that such disability resulted in psychiatric symptomatology that more nearly approximates occupational and social impairment with deficiencies in most areas or total occupational and social impairment. With respect to his symptomatology during such period, the record reflects reports of insomnia, depressed mood, anxiety, suspiciousness, anger, irritability, feelings of guilt, panic attacks, paranoia, forgetfulness, impaired judgment, disturbances of motivation and mood, suicidal ideation without intent or plan, and difficulty in establishing and maintaining effective work and social relationships. As for the impact such psychiatric symptomatology had on the Veteran’s social functioning prior to March 9, 2018, a January 2013 VA examiner determined the Veteran had moderate symptoms of dysthymic disorder, which caused him moderate difficulty in social functioning historically. The VA examiner found the Veteran’s social functioning was long impaired by his dysthymic disorder, leading him to be a more solitary individual who probably would unhealthily and too quickly attach to women who would provide soothing to him, not always in the most appropriate manner. The VA examiner noted the Veteran had few friends at that time and mainly stayed to himself in the penal system. His conflicts with others in the system was attributed to his participation in the sex offender treatment program. Similarly, a VA examiner in April 2015 determined the Veteran’s psychiatric disability resulting in occupational and social impairment with reduced reliability and productivity. On examination, the Veteran reported a difficult relationship with his wife, fearing that he would “lose control”, and described frequent arguments. The Veteran noted that he was in touch with many of his children, had weekly phone contact with his sister, and did not have such close relationships with his other sisters. The Veteran also stated that he had no friends currently. In August 2015, a VA examiner again reported that the Veteran’s psychiatric disability was manifested by psychiatric symptomatology that resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported fights with his wife and being unable to visit his other family members due to his registered sex offender status. He stated that he no longer had a therapeutic community like the one he had while in prison. With respect to occupational functioning, the January 2013 VA examiner found the Veteran had moderate symptoms of dysthymic disorder that caused him moderate difficulty in occupational functioning historically. As noted above, the VA examiner found the Veteran’s psychiatric symptomatology resulted in occupational and social impairment with reduced reliability and productivity. However, the VA examiner subsequently stated the Veteran’s employment was not impacted by psychiatric issues, as he was never in treatment while in the military and was able to do his current job as a paraprofessional with the GED students. The April 2015 VA examiner also provided the opinion that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. It was noted that while incarcerated, the Veteran worked in the kitchen, as a GED assistant instructor, and cleaning up the greenhouse. The Veteran was currently an online student, describing school as the only thing that provided value in his life, but reported recent setbacks during his last class. In August 2015, the VA examiner again determined the Veteran’s psychiatric symptomatology caused occupational and social impairment with reduced reliability and productivity. It was noted that since getting out of prison in June 2014, the Veteran had been unemployed. Upon review of the foregoing evidence, the Board finds a rating in excess of 50 percent for psychiatric disability is not warranted prior to March 9, 2018. Here, the Board affords the VA examiner’s findings significant probative value as they were based on psychological evaluation of the Veteran during the appeal period and consideration of the Veteran’s own lay statements of his symptoms in light of the rating criteria. In particular, the VA examiners specifically opined the Veteran’s level of occupational and social impairment was best described as occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. With respect to the specific types of symptoms associated with a higher rating, the Board initially notes the Veteran reported a history of suicidal ideation. In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula “indicates that the presence of suicidal ideation alone…may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability and their resulting social and occupational impairment. In this respect, the evidence, to include the Veteran’s own lay statements, does not reflect, to any extent, the other symptomatology contemplated by the higher ratings, to include obsessional rituals, abnormal speech, near-continuous panic or depression affecting the ability to function, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation, memory loss for names of closest relatives, own occupation, or own name, or intermittent ability to perform activities of daily living. As for social impairment, although the Board notes the Veteran did not maintain many friendships, he indicated such was the result of his inability to contact his friends from prison and the military. Additionally, although his marriage was contentious, the Veteran maintained contact with several of his children. Further, with respect to occupational functioning, the Board has considered such in the award of a TDIU herein and notes that the rating criteria for Diagnostic Code 9411 specifically include both occupational and social functioning, the latter of which is addressed above. Therefore, in consideration of the totality of the nature, frequency, severity, and duration of the Veteran’s psychiatric symptomatology, the Board finds that such results in no more than occupational and social impairment with reduced reliability and productivity prior to March 9, 2018. Consequently, a rating in excess of 50 percent is not warranted under the General Rating Formula for this period. From March 9, 2018, to October 1, 2018, the Veteran’s PTSD is rated as 70 percent disabling and, as such, the evidence must demonstrate psychiatric symptomatology resulting in total occupational and social impairment to warrant a higher rating. The primary source for information pertinent to this period is a March 2018 VA examination report. Therein, the VA examiner summarized the Veteran’s level of impairment as occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. The Veteran’s reported symptoms specifically consisted of nightmares, intrusive memories, depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and impaired impulse control. On examination, the Veteran wore casual attire, demonstrate full range of affect, and was oriented. As for social and occupational functioning, the Veteran denied any changes in his marital, social, family, or occupational situations since the last examination in August 2015. Upon review, the Board finds the criteria for a rating in excess of 70 percent for psychiatric disability are not met for the period from March 9, 2018, to October 1, 2018. Again, the Board affords the VA examiner’s conclusions significant probative weight as he is a clinical psychologist with medical expertise who examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria. With respect to the latter, the Board notes the evidence, to include the lay statements, does not demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent ability to perform activities of daily living, disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name, symptomatology specifically contemplated within the criteria for a 100 percent rating. Further, the record does not reflect any substantial worsening in the Veteran’s social and occupational functioning. As such, the Board finds the evidence does not demonstrate total occupational and social impairment due to psychiatric disability during this period. Therefore, based on the foregoing, the Board finds the nature, frequency, duration, and severity of the Veteran’s psychiatric symptomatology does not more nearly approximate total occupational and social impairment as of April 11, 2019. Consequently, a rating in excess of the 70 percent assigned for the Veteran’s PTSD under Diagnostic Code 9411 is not warranted as of April 11, 2019. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected psychiatric disability; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Thus, the Board finds that initial increased ratings for the Veteran’s psychiatric disability are not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claims, the benefit of the doubt doctrine is not applicable in such regard and the Veteran’s increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection for Lumbar Spine Disorder The Veteran asserts he has a current lumbar spine disorder that had its onset during service, the symptoms of which he has continuously experienced since service. While he has alleged, in the alternative, that he manifested arthritis in the lumbar spine within one year of his separation from honorable service or his service-connected left knee disorder caused or aggravated a current lumbar spine disorder, the Board need not address such presumptive and secondary theories of entitlement as service connection is awarded on a direct basis herein. In this regard, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. With respect to a current disability, a May 2019 VA examination report reflects diagnoses of degenerative arthritis of the spine and degenerative disc disease of the lumbar spine. Concerning an in-service disease or injury, a May 1991 service treatment record reflects the Veteran’s reports of low back pain for one day, while a January 1993 service treatment record again shows the Veteran complained of back pain. Further, a May 1994 service treatment record shows the Veteran had experienced low back spasms for four months and had reinjured his back while wearing a ruck sack. A March 1996 service treatment record also demonstrates a complaint of low back pain. However, the record contains contradictory opinions as to whether the Veteran’s current lumbar spine disability is related to his military service. Initially, the Board notes the Court found the March 2005 and June 2010 medical examinations insufficient for purposes of determining entitlement to service connection. As a result, the Board finds further discussion of such examination reports and the associated opinions futile. In April 2014, following physical examination, a VA examiner opined it is less likely than not that the Veteran has a chronic thoracolumbar condition or that a chronic thoracolumbar condition was aggravated by active military service. The VA examiner found that although the Veteran had three episodes of acute thoracolumbar strain while in service, in each case the acute thoracolumbar strain resolved completely as the Veteran was able to resume wrestling for the Army. In addition, the VA examiner noted the Veteran had no thoracolumbar condition at the time of an August 1999 examination. Further, the VA examiner found pertinent that the Veteran reinjured his low back while in prison in December 2005; however, as the Veteran was able to resume weight-lifting, exercises, and running, the VA examiner determined the latter episode resolved as well. In opposition, the Veteran submitted an August 2018 letter from a private physician, S.M., in support of his claim. Therein, S.M. found the Veteran’s medical records revealed a history highly suggestive of a significant back injury in service and residual persistent effects. S.M. noted the Veteran’s reports of falling out of a helicopter during basic training from a height of several feet, exacerbating an old sports injury at that time, and subsequently having incurred further injury digging foxholes, lifting heavy sandbags and logs, wrestling, and carrying heavy equipment. S.M. found there were at least eight recorded visits for low back pain with spasms between May 1991 and March 1996. Additionally, S.M. noted the service medical records indicate the Veteran walked with an antalgic gait as a result of his left knee condition and found that the aforementioned incidents, as well as the service conditions, suggested episodes of trauma with cumulative damage to the lower back rather than simple separate and unconnected minor injury episodes with full recover. S.M. explained that it is well-supported in medical literature that a dysfunction of a lower extremity resulting in gait disturbance can contribute to chronic low back pain. Additionally, S.M. found post-service records indicated continuous chronic low back pain following service. In this respect, S.M. acknowledged the normal X-ray examination reports dated in 1997 and 2001; however, S.M. found a magnetic resonance imaging scan or CT scan, which were not conducted, would have been more revealing. In sum, S.M. opined the Veteran’s lumbar spine disability was “more likely than not to have arisen due to service-related activity and began during service”. Conversely, a May 2019 VA examiner found there is no evidence of lumbar degenerative disk disease or degenerative joint disease occurring during military service. The VA examiner found the Veteran had an instance of acute lumbar strain which resolved during service and did not complain of back pain again until injuring his back in prison in 2005. Therefore, there is no chronicity of care, a nexus has not been established, and the claimed lumbar spine disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, in February 2021 the Veteran submitted an additional opinion from a private physician, A.A., who opined it is more likely than not that the Veteran’s lumbar degenerative disc disease began while in service. A.A. noted there were a number of records showing chronic back pain both during and after service leading up to the 1999 examination. Additionally, A.A. disagreed with the VA examiners’ opinions in 2010, 2014, and 2019, arguing that such examiners failed to acknowledge the impact of cumulative damage to the vertebral spine. A.A. explained that even a small injury, such as lifting something heavy, could trigger the degenerative cascade and noted the Veteran had multiple insults over time while in service that continued to exert ongoing stress to his lumbar spine. A.A. also stated that it was not atypical for individuals to have a waxing and waning symptom course associated with lumbar spine and that such did not negate the fact that the initial injuries and trauma to the lumbar spine occurred while in service. A.A. determined that the cumulative effect and result was the development of degenerative disc disease years later. After a review of the record, the Board finds the evidence of record is at least in equipoise as to whether the Veteran’s current lumbar spine disability is related to his military service. Specifically, the VA examiners, S.M., and A.A. are competent medical professionals who considered all relevant facts and accepted medical principles, and provided complete rationales for the opinions. Consequently, their opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his current lumbar spine disability, diagnosed as degenerative arthritis of the spine and degenerative disc disease of the lumbar spine, is related to his military service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Entitlement to TDIU Prior to October 1, 2018 In his May 2013 VA Form 21-8940, the Veteran reported that he became too disabled to work in 2005 due to his bilateral pes planus, left knee disability, psychiatric disability, and left ear disability. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted previously, the instant appeal stems from the Veteran’s initial claims for service connection, which were received on December 3, 1997. From February 18, 1998, to July 9, 2010, the Veteran is in receipt of a combined rating of 40 percent based on bilateral onychomycosis, evaluated as noncompensably disabling; cold injury residuals, left foot, evaluated as 10 percent disabling; cold injury residuals, right foot, evaluated as 10 percent disabling; left knee ACL reconstruction and meniscus repair, evaluated as 10 percent disabling; and left knee meniscal injury status post repair, evaluated as 10 percent disabling. Based on these assignments, he does not currently meet the schedular threshold for consideration of a TDIU prior to July 9, 2010, and such period is addressed in the Remand portion below. From July 9, 2010, to October 1, 2018, however, he has met the schedular threshold for consideration of TDIU based on the ratings assigned for the above service-connected disabilities as well as his now-service-connected psychiatric disability and migraines. With respect to education, the record indicates the Veteran attended college online at Adams State University for business and graduated with a Bachelor’s degree in 2005. He also earned his Master’s degree in business in 2013. As for occupational history, the Veteran was required to work in prison subsequent to his separation from service and was a tutor for the GED program. Since his release from prison in 2014, the Veteran does not report any employment. As noted above, the Court found the June 2010 VA examination insufficient, and as such, the Board will not consider the relevant associated opinion herein. Following psychological examination in January 2013, the VA examiner initially opined the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. However, the VA examiner subsequently reported that the Veteran’s employment was not impacted by psychological issues. In particular, the VA examiner noted the Veteran was able to do his current job as a paraprofessional with the GED students in prison. In a March 2014 addendum opinion, the same VA examiner opined the Veteran was able to work in any employment at that time, as his depression was well-controlled by medication and was working in prison. In an April 2014 VA examination report, the VA examiner opined the Veteran’s service-connected physical disability would not render him incapable to secure and maintain substantially gainful employment. In particular, the VA examiner noted the Veteran’s physical condition did not allow him to lift and carry very heavy objects; however, such did not preclude him from light to moderate physical work or sitting at a desk and doing telephone, paperwork, or computer work. According to an April 2015 Disability Benefits Questionnaire, a VA examiner found the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. In May 2015, a VA examiner determined the Veteran’s service-connected cold residuals of the bilateral feet would prevent him from working in wet or humid environments and force him to avoid prolonged exposures to very cold or very hot environment. In addition, standing and walking were limited to approximately one hour at a time due to such disability. Following psychological examination of the Veteran in August 2015, the VA examiner found the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. In August 2016, a VA physician found the Veteran’s service-connected left knee disability would cause difficulty with climbing stairs, prolonged walking, standing, and sitting, squatting, kneeling, and repetitive getting into and out of chairs. In March 2018, a VA examiner opined the Veteran’s psychiatric disability was manifested by psychiatric symptomatology that resulted in occupational and social impairment with deficiencies in most areas. In August 2018, a VA examiner determined the Veteran’s service-connected left knee disability limited his ability to walk or stand for prolonged periods and prevented him from kneeling, running, jumping, and climbing stairs for any duration. That same month, a VA examiner determined the Veteran’s migraine attacks would limit his ability to focus and concentrate and impact his cognitive abilities, to include decision-making, thinking, and planning. When more severe, such attacks would cause him to miss work for potentially more than one day. In October 2018, the Veteran’s representative submitted a September 2018 Vocational Assessment provided by W.C., a vocational expert, in support of the Veteran’s claim. Therein, W.C. noted the Veteran has physical limitations stemming from his service-connected left knee and cold foot conditions, as well as psychological limitations that interfere with his ability to demonstrate reliability and productivity. W.C. reviewed the Veteran’s educational history, work history, and the relevant opinions cited above. In particular, W.C. noted that reliability and productivity are the most important factors in performing any level of work activity, as a person is not able to effectively perform any kind of work activity if he or she cannot reliably get to the job when scheduled to be there or if they cannot stay at the job for their scheduled shift even if they appear at the job. Likewise, if a person cannot be productive in the efficient completion of assigned duties even they are present for an eight-hour workday, that person is not able to maintain a job. In this respect, W.C. determined the Veteran’s service-connected psychiatric disability produces such effects and inefficiencies. Notably, as for the Veteran’s educational accomplishments and work as a GED instructor in prison, W.C. opined that demonstrating reliability while incarcerated is not the same as being able to perform in the competitive world of work. W.C. stated that working while incarcerated was comparable to working in a sheltered workshop with constant supervision and unlike performing in a competitive work situation. Considering the Veteran’s education, work history, and the limitations caused by his service-connected psychological disabilities, W.C. opined it is at least as likely as not that the Veteran is precluded from securing or following a substantially gainful occupation and has been unable to do since his depression was deemed service-connected in 2010. W.C. went on to find that if working, the Veteran would likely be restricted to working on a full-time basis to sedentary work because of his service-connected left knee injury; however, W.C. determined the Veteran did not have experience in or skills that transfer to sedentary work, in spite of his education. In this respect, the Veteran completed his education online, which did not require any social interaction with others. Therefore, only unskilled sedentary work would be appropriate for him. In this regard, W.C. reported that only a fraction of a small number of such jobs, approximately 1,000, are geographically close to the Veteran. Further, W.C. opined such jobs were precluded as appropriate for the Veteran due to his inability to demonstrate reliability and productivity as described above. In addition, as noted above, the October 2018 VA examiner found the Veteran’s psychiatric disability was manifested by symptomatology resulting in total occupational and social impairment. Pertinent to the issue of entitlement to a TDIU prior to October 1, 2018, the VA examiner found the Veteran’s symptoms were “chronic, comorbid, severe, and disabling”. In this case, the Board has paid particular attention to the Veteran’s limited work history. In addition, the Board notes the high ratings assigned for the Veteran’s psychiatric disability from July 9, 2010, to October 1, 2018, and finds such are supported by the findings of multiple medical examiners. In particular, the October 2018 VA examiner determined the Veteran’s psychiatric symptomatology was chronic, comorbid, severe, and disabling. Further, the Board affords significant probative value to W.C.’s opinion regarding the Veteran’s employability since 2010, based on the thorough and extensive explanation provided in support thereof and citation to pertinent evidence particular to the Veteran’s individual case. Consequently, in light of the Veteran’s education level, work history, and nature of the limitations of his service-connected disabilities, the Board resolves all doubt in his favor and finds that such service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the appeal period from July 9, 2010, to October 1, 2018. Therefore, a TDIU is warranted for such appeal period. REASONS FOR REMAND Bilateral Pes Planus In the May 2019 Remand, the Board requested a clarifying opinion as to the nature and etiology of the Veteran’s bilateral pes planus. In pertinent part, the Board requested that the examiner discuss whether the Veteran’s bilateral pes planus is deemed congenital/developmental in nature. If found to be a congenital defect, the examiner was to provide an opinion as to whether the Veteran’s period of honorable service resulted in an additional superimposed disability, to include plantar fasciitis. If deemed a congenital disease, the examiner was to address whether the Veteran’s pre-existing pes planus was aggravated beyond the normal progression of the disorder by such period of service. Pursuant to the Board Remand, a VA nurse practitioner provided an opinion in May 2019. Upon review, however, it appears the nurse practitioner did not understand the specific questions asked therein. Although the nurse practitioner indicated the Veteran’s bilateral pes planus was congenital/developmental in nature, the rationale provided was the notion that the claimed condition was diagnosed prior to entrance into service, with a specific citation to the January 1989 enlistment examination. Further, when asked whether service resulted in an additional superimposed disability, the nurse practitioner noted the Veteran complained of foot pain on only one occasion during service, there was no chronicity of care, and, therefore, a nexus was not established. Moreover, the nurse practitioner opined there was no evidence that pes planus was aggravated during military service. As such, it appears the nurse practitioner confused the opinions required with respect to a pre-existing disorder versus a congenital defect or disease. Additionally, the Board notes the Veteran submitted an opinion from a private physician, A.A., in February 2021. Although A.A. opined the Veteran’s “congenital pes planus became aggravated beyond the normal course of the diagnosis because of in-service stressors”, A.A. did not identify whether the Veteran’s pre-existing pes planus constituted a congenital defect or a congenital disease. As such, the Board finds an addendum opinion for clarification is required prior to re-adjudication. TDIU Prior to July 9, 2010 & Nonservice-Connected Pension Benefits The Veteran asserts that his bilateral pes planus and service-connected lumbar spine disability, in addition to his other service-connected disabilities, have prevented him from securing and following a substantially gainful occupation since 2005. Thus, the Board finds that the development and adjudication of the service connection claim for bilateral pes planus remanded herein, as well as the implementation of the award of service connection for lumbar spine disability, could impact the Veteran’s eligibility for, and entitlement to, a TDIU prior to July 9, 2010. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Veteran’s claim for a TDIU is inextricably intertwined with the remanded claim and award of service connection, and adjudication of the former issue must be deferred pending the outcome of the latter issues. Likewise, the Board finds the issue of entitlement to nonservice-connected pension benefits is intertwined with such claims and, thus, must be remanded as well. The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to the May 2019 VA nurse practitioner, or an appropriate substitute if unavailable, for an addendum opinion addressing the etiology of the Veteran’s bilateral pes planus. The need for additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Thereafter, the clinician should address the following inquiries: (A) State whether the Veteran’s bilateral pes planus constitutes a congenital or developmental defect or disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (B) If the Veteran’s bilateral pes planus is a congenital or developmental defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. In this respect, the clinician should specifically address the current diagnosis of plantar fasciitis. (C) If the Veteran’s bilateral pes planus is a congenital or developmental disease, did such clearly and unmistakably pre-exist the Veteran’s entrance into active duty in March 1991? (i.) If so, is there clear and unmistakable evidence that the pre-existing disease did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of the disease, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii.) If not, is it at least as likely as not (i.e. 50 percent or greater probability) that the congenital or developmental disease is related to service? A complete rationale should be offered for any opinion provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.