Citation Nr: 21026259 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-26 969 DATE: April 30, 2021 ORDER An increased rating in excess of 40 percent for arthritis of the lumbar spine is denied. A rating in excess of 10 percent for right lower extremity radiculopathy (sciatic nerve) prior to May 16, 2017, and in excess of 20 percent thereafter, is denied. For the rating period prior to October 27, 2020, a 10 percent rating, but no higher, for left lower extremity radiculopathy (sciatic nerve) is granted. For the appeal period beginning October 27, 2020, a rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is denied. A compensable rating for right lower extremity radiculopathy (femoral nerve) prior to December 12, 2016, and in excess of 30 percent thereafter, is denied. A compensable rating for left lower extremity radiculopathy (femoral nerve) prior to October 27, 2020, and in excess of 20 percent thereafter, is denied. For the rating period prior to March 3, 2009, a total disability rating based on individual unemployability (TDIU) as due to the service-connected disabilities is granted. For the rating period from May 1, 2010 to December 31, 2010, entitlement to a TDIU is denied. For the rating period from January 1, 2011 to December 31, 2012, a TDIU is granted. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months requiring bed rest prescribed by a physician. 2. For the appeal period prior to May 16, 2017, the Veteran’s right lower extremity radiculopathy was manifested by, at worst, mild incomplete paralysis of the sciatic nerve; beginning May 16, 2017, the Veteran’s right lower extremity radiculopathy was manifested by, no worse, than moderate incomplete paralysis of the sciatic nerve. 3. For the appeal period prior to October 27, 2020, the Veteran’s left lower extremity radiculopathy more nearly approximated mild incomplete paralysis of the sciatic nerve; beginning October 27, 2020, the Veteran’s left lower extremity radiculopathy was manifested by, no worse, than moderate incomplete paralysis of the sciatic nerve. 4. The Veteran was not diagnosed with right lower extremity femoral nerve radiculopathy at any time prior to December 12, 2016; beginning December 12, 2016, his femoral nerve radiculopathy was manifested by, no worse, than moderate incomplete paralysis of the femoral nerve. 5. The Veteran was not diagnosed with left lower extremity femoral nerve radiculopathy at any time prior to October 27, 2020; beginning October 27, 2020, his femoral nerve radiculopathy was manifested by, no worse, than moderate incomplete paralysis of the femoral nerve on the left and severe incomplete paralysis on the right lower extremity. 6. For the rating period prior to March 3, 2009, and from January 1, 2011 to December 31, 2012, the Veteran’s service-connected disabilities prevented him from obtaining or maintaining a substantially gainful occupation. 7. From May 1, 2010 to December 31, 2010, the Veteran was employed an earned more than the poverty threshold for fiscal year 2010. 8. The Veteran is already in receipt of a TDIU beginning January 1, 2013. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for the lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020). 2. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy (sciatic nerve) prior to May 16, 2017, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 3. For the rating period prior to October 27, 2020, the criteria for a 10 percent rating, but no higher, for left lower extremity radiculopathy (sciatic nerve) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 4. For the appeal period beginning October 27, 2020, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 5. The criteria for a compensable rating for right lower extremity radiculopathy (femoral nerve) prior to December 12, 2016, and in excess of 30 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526 (2020). 6. The criteria for a compensable rating for left lower extremity radiculopathy (femoral nerve) prior to December 12, 2016, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526 (2020). 7. For the rating period prior to March 3, 2009, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). 8. For the rating period from May 1, 2010 to December 31, 2010, the criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). 9. For the rating period from January 1, 2011 to December 31, 2012, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to April 1969 and April 1971 to November 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and February 2016 rating decisions by the Department of Veterans Affairs (VA). These issues have been variously remanded by the Board in February 2012 (TDIU), March 2015, September 2015, April 2017, September 2019, and August 2020. Entitlement to an increased rating in excess of 20 percent for lumbar spine arthritis was denied by the Board in an April 2018Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to an April 2019 Joint Motion for Remand. The issue was subsequently remanded as noted above. The issue of entitlement to a TDIU has been on appeal since February 2008. See February 2012 Board remand (TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009)). Disability Ratings—Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Lumbar Spine Disability The Veteran’s lumbar spine disability has been evaluated as 40 percent disabling throughout the entire rating period on appeal. The Veteran’s lumbar spine disability will be rated under Diagnostic Code 5242 for degenerative arthritis of the spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), unfavorable or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), and degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003). The General Rating Formula provides a 40 percent rating is assigned forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar 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 thoracolumbar 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. DC 5243 provides that IVDS is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent 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 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 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 rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA’s Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.   For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran’s claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects “Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)”; DC 5243 now reflects “Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses.” As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. After a review of all the evidence of record, the Board finds that a disability rating in excess of 40 percent is not warranted for the Veteran’s lumbar spine disability. The Veteran was afforded VA spine examinations in October 2012, December 2015, and May 2017. He has also undergone treatment for his lumbar spine disability through VA and private medical providers. At no time during the appeal period has the Veteran been shown to have unfavorable ankylosis of the entire thoracolumbar spine or IVDS resulting in incapacitating episodes (requiring physician prescribed bed rest) having a total duration of at least six weeks during the past 12 months. The Board has considered the Veteran’s reported impairment of function, such as back pain and difficulty standing, bending, walking, sitting, and driving, and has considered additional limitations of motion due to pain. See e. g., May 2017 VA spine examination report. These factors have been applied in awarding the currently assigned 40 percent rating. As such, the additional limitation of motion or function of the spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4. 40, 4.45, 4.59, DeLuca), do not provide a basis the assignment of an even higher rating. For these reasons, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted. Lower Extremity Radiculopathy The Veteran is currently in receipt of a 10 percent rating for right lower extremity radiculopathy (sciatic nerve) for the appeal period prior to May 16, 2016; he is in receipt of a 20 percent rating beginning May 16, 2016. The Veteran has also been awarded a 20 percent rating for left lower extremity radiculopathy (sciatic nerve) beginning October 27, 2020. Additionally, the Veteran has been assigned a 30 percent rating, effective December 12, 2016, for right lower extremity radiculopathy of the femoral nerve. A 20 percent rating for left lower extremity radiculopathy of the femoral nerve was awarded October 27, 2020. The evidence includes an October 2013 VA neurosurgery consult note. At that time, the Veteran presented with worsening low back pain in the “past six months.” He also reported that “leg pain also started this year.” The Veteran indicated that he had pain in both legs, with his right leg sometimes feeling like it will “give out.” The VA physician reviewed a September 2013 MRI report and indicated that there was disk osteophyte complex at L5-S1, “possibly impinging the right S1 nerve root.” In a January 2014 physical therapy consult note, the Veteran reported having low back pain with “radicular symptoms into both legs.” The diagnosis was noted as “LBP, sciatica.” The Veteran denied radiculopathy in either lower extremity during the October 2012 VA examination. During a December 2015 VA examination, the Veteran was found to have “mild” right lower extremity radiculopathy of the sciatic nerve root, but no symptoms pertaining to the left lower extremity. The Veteran was afforded a VA peripheral nerves examination in December 2016. At that time, the Veteran was noted to have undergone a right total hip arthroplasty in 2016, resulting in numbness and tingling radiating to the right anterior thigh. The examiner indicated that the Veteran had “moderate” incomplete paralysis of the femoral nerve on the right lower extremity. During a May 2017 VA spine examination, the Veteran was noted to have “moderate” incomplete paralysis of the sciatic nerve root on the right, but no signs or symptoms of radiculopathy on the left. The Veteran was afforded another VA peripheral nerves examination in October 2020. The examiner noted that the Veteran was diagnosed with right lower extremity radiculopathy in 2016, and with left lower extremity radiculopathy on the date of examination (October 27, 2020). The examiner indicated that the Veteran had “moderate” incomplete paralysis of the right and left lower extremity sciatic and femoral nerve roots. A corresponding medical opinion indicated that the Veteran’s femoral nerve root paralysis was, at least in part, related to his service-connected lumbar spine disability. Sciatic Nerve Radiculopathy Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; 20 percent for moderate incomplete paralysis; 40 percent for moderately severe incomplete paralysis; 60 percent for severe incomplete paralysis with marked muscular atrophy; and 80 percent for complete paralysis of the sciatic nerve. 38C.F.R. §4.124a, Diagnostic Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38C.F.R. §4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. As it pertains to the right lower extremity, the Board finds that ratings in excess of 10 percent prior to May 16, 2017, and in excess of 20 percent thereafter, are not warranted. In this regard, the VA examinations in October 2012 and December 2015 showed either no complaints of radiculopathy or “mild” incomplete paralysis of the sciatic nerve root. The May 2017 VA examination report is the first evidence demonstrating that the Veteran’s right lower extremity radiculopathy was of moderate severity. Accordingly, the Board finds that ratings in excess of 10 percent prior to May 16, 2017, and in excess of 20 percent thereafter, are not warranted. Regarding the left lower extremity, the Board finds that, for the rating period prior to October 27, 2020, a 10 percent rating, but not higher, for radiculopathy is warranted. As noted above, during the October 2013VA neurosurgery consult, the Veteran complained of pain in both legs. The VA physician reviewed a September 2013 MRI report and indicated that there was disk osteophyte complex at L5-S1, “possibly impinging the right S1 nerve root.” In a January 2014 physical therapy consult note, the Veteran reported having low back pain with “radicular symptoms into both legs.” The diagnosis was noted as “LBP, sciatica.” As such, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a rating of 10 percent is warranted for left lower extremity radiculopathy for the appeal period prior to October 27, 2020. The Board further finds that a rating in excess of 10 percent is not warranted for the appeal period prior to October 27, 2020 for the left lower extremity. Although the Veteran complained of some left leg pain during VA treatment, the October 2012, December 2015, and May 2017 found no objective evidence of left lower extremity radiculopathy. As such, a rating in excess of 10 percent for left lower extremity radiculopathy is not warranted for the appeal period prior to October 27, 2020. As it pertains to the rating period beginning October 27, 2020, a rating in excess of 20 percent for left lower extremity radiculopathy is not approximated. The October 2020 VA examination indicated the Veteran suffered mild constant pain in the left lower extremity, moderate intermittent pain, moderate paresthesias, and moderate numbness. The examiner specifically indicated that there was “moderate” involvement of the sciatic nerve on the left. As such, the preponderance of the evidence is against a finding that a rating in excess of 20 percent is warranted for left lower extremity radiculopathy beginning October 27, 2020. Femoral Nerve Radiculopathy As noted above, the Veteran has also been assigned a separate 30 percent rating, effective December 12, 2016, for right lower extremity radiculopathy of the femoral nerve. A 20 percent rating for left lower extremity radiculopathy of the femoral nerve was awarded October 27, 2020. Under Diagnostic Code 8526 pertains to a disability comparable to paralysis of the anterior crural nerve (femoral). Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. The Board initially finds that compensable ratings are not warranted for the right or left femoral nerve radiculopathy for the appeal period prior to December 12, 2016 (right lower extremity) and October 27, 2020 (left lower extremity). The evidence prior to these dates did not show a diagnosis of femoral nerve radiculopathy. See December 2016 VA examination (diagnosing the Veteran with right lower extremity femoral nerve radiculopathy following a 2016 right hip surgery); see also October 2020 VA examination (first diagnosing left lower extremity femoral nerve radiculopathy). Accordingly, the Board finds that compensable ratings for femoral nerve radiculopathy prior to December 12, 2016 (right lower extremity) and October 27, 2020 (left lower extremity) are not warranted. The Board further finds that ratings in excess of 30 percent (right lower extremity) and 20 percent (left lower extremity) are not warranted for the appeal periods beginning December 12, 2016 (right lower extremity) and October 27, 2020 (left lower extremity). In this regard, the December 2016 and October 2020 VA examination report specifically indicated that the Veteran’s femoral radiculopathy was of “moderate” severity. The Veteran was also noted to have muscle atrophy on the right. The Board finds that the Veteran’s symptoms of pain, numbness, tingling, and (muscle atrophy in the right lower extremity) are adequately considered by the currently assigned ratings, which also include sciatic nerve radiculopathy. Accordingly, ratings in excess of 20 and 30 percent are not warranted for the appeal periods beginning December 12, 2016 (right lower extremity) and October 27, 2020 (left lower extremity) are denied. TDIU—Laws and Analysis In a February 2012 decision, the Board found that a claim for entitlement to a TDIU had been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At that time, the Board remanded the TDIU claim. Although entitlement to TDIU was subsequently granted in an October 2017 rating decision, the grant did not encompass the entire period on appeal. See also October 2017 rating decision (implementing the grant of a TDIU effective January 1, 2013). The Veteran is also in receipt of a 100 percent rating from March 3, 2009 to April 30, 2010 based solely on his service-connected right hip disability. He has also been awarded special monthly compensation (SMC) from March 3, 2009 to April 30, 2010. As such, the Board finds that a TDIU is moot for this period. See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As further addressed below, the Board finds that a TDIU is not warranted for 2010 as the Veteran was gainfully employed at that time. As it pertains to the rating period prior to March 3, 2009, and from January 1, 2011 (following FY 2010) to December 31, 2012 (the day preceding the grant of a TDIU effective January 1, 2013), the Board finds that a TDIU is warranted based on the Veteran’s service-connected disabilities. A total disability rating for compensation based on TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). As it pertains to the rating period prior to March 3, 2009, and from January 1, 2011 to December 31, 2012, the Veteran’s service-connected disabilities resulted in a 90 percent combined disability rating. As such, the Veteran meets the rating percentage standards for TDIU under 38 C.F.R. § 4.16 (a). Moreover, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. Although the Veteran was employed in 2008 and 2009, his employment was marginal. 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. According the Census, in 2008, the poverty threshold for a single person was $11,201. In 2009, the poverty threshold was $11,161. The Veteran submitted his W-2s for 2008 to 2012, which indicate that the Veteran earned below the poverty threshold for 2008 and 2009. Specifically, in 2008, the Veteran’s income was $8,701, and in 2009, his income was $5,500. As such, the Board finds that the Veteran only had marginal employment prior to March 3, 2009. Regarding the year 2010, the Veteran’s W-2 indicates that he earned $12,300. In 2010, the poverty threshold was $11,344. Therefore, because the Veteran’s employment in 2010 was more than marginal (i. e., above the poverty threshold), a TDIU is not warranted from May 1, 2010 to December 31, 2010. As it pertains to the rating period from January 1, 2011 to December 31, 2012, the Board finds that the Veteran’s income was below the poverty threshold. In this regard, the Veteran’s W-2s indicate that he earned $6,350 in 2011 and $5,500 in 2012. In 2011, the poverty threshold was $11,702, and in 2012, the poverty threshold was $11,945. The Veteran has indicated that his service-connected disabilities, to specifically include his eye and spine disabilities, render him unable to perform more than marginal employment. See e. g., Veteran’s statement dated in September 2012. A May 2013 VA medical opinion indicated that the Veteran’s spine, Raynaud’s disease, and right wrist would “likely” interfered with physical and sedentary employment. A May 2008 VA examination report further indicated that the Veteran’s spine disability would result in “significant effects” on occupational tasks. For these reasons, and resolving reasonable doubt in the Veteran’s favor, given the impact of his service-connected disabilities and his marginal employment from 2008 to 2009, and from January 1, 2011 to December 31, 2012, he was unable to secure and maintain substantially gainful employment due to his service-connected disabilities. As noted above, the Veteran is currently in receipt of a 100 percent rating from March 3, 2009 to April 30, 2010 for his service-connected right hip disability. He has also been awarded SMC from March 3, 2009 to April 30, 2010. As such, the Board finds that a TDIU is moot for this period. Moreover, the Board (in a previous decision) already granted a TDIU effective January 1, 2013. The Veteran has already been awarded SMC from November 19, 2014 to July 1, 2016 during which he was assigned a 100 percent rating for one disability and had additional disabilities ratable at 60 percent or more. 38 U.S.C. 1114(s) and 38 CFR 3.350(i). As such, the Board find that no additional consideration for SMC is warranted. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28Vet. App.366, 369-70 (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). A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.