Citation Nr: 21027616 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 10-29 590 DATE: May 6, 2021 ORDER For the appellate period prior to December 28, 2017, entitlement to an initial disability rating of 20 percent for lumbar spine degenerative disc disease and facet disease with scoliosis (hereinafter referred to as "lumbar spine disability") is granted. For the entire period on appeal, entitlement to a separate disability rating of 10 percent, but no higher, for radiculopathy of the right lower extremity is granted. For the entire period on appeal, entitlement to a separate disability rating of 10 percent, but no higher, for radiculopathy of the left lower extremity is granted. Beginning October 27, 2014, entitlement to a total disability rating based upon individual unemployability (TDIU) based on all the Veteran's service-connected disabilities is granted. Beginning June 7, 2019, for the purpose of establishing entitlement to special monthly compensation (SMC) at the housebound rate, entitlement to a TDIU based solely upon the Veteran's service-connected major depressive disorder (MDD) is granted. Beginning June 7, 2019, entitlement to SMC at the housebound rate is granted. REMANDED For the appellate period prior to December 28, 2017, entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. For the appellate period prior to October 27, 2014, entitlement to a TDIU is remanded. FINDINGS OF FACT 1. For the appellate period prior to December 28, 2017, the evidence is in equipoise as to whether forward flexion of the Veteran's thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees. 2. Resolving all reasonable doubt in the Veteran's favor, for the entire period on appeal, the Veteran has experienced radicular symptoms in the right and left lower extremities as neurological manifestations of his lumbar spine disability, which are shown to be no more than mild in nature. 3. Beginning October 27, 2014, the evidence is in equipoise as to whether the Veteran has been rendered unable to secure and maintain gainful employment due to his service-connected disabilities. 4. Beginning June 7, 2019, the evidence is in equipoise as to whether the Veteran has been rendered unable to secure and maintain gainful employment due solely to his service-connected MDD. 5. Beginning June 7, 2019, the Veteran has a service-connected disability rated as total (MDD), and his other service-connected disabilities are rated as at least 60 percent disabling. CONCLUSIONS OF LAW 1. For the appellate period prior to December 28, 2017, the criteria for an initial disability rating of 20 percent for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. For the entire period on appeal, the criteria for a separate disability rating of 10 percent, but no higher, for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. For the entire period on appeal, the criteria for a separate disability rating of 10 percent, but no higher, for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. Beginning October 27, 2014, the criteria for entitlement to a TDIU based on all the Veteran's service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 5. Beginning June 7, 2019, the criteria for entitlement to a TDIU based solely on the Veteran's service-connected MDD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 6. Beginning June 7, 2019, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 2006 to March 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted service connection for lumbar spine degenerative disc and facet disease with scoliosis and assigned a 10 percent disability rating, effective February 2, 2008. By way of procedural background, these matters were previously before the Board in February 2017, December 2017, May 2019, and November 2020. In its February 2017 decision, the Board denied entitlement to non-service connected disability pension, remanded the issues of entitlement to increased ratings for lumbar spine and left knee disabilities for issuance of a Statement of the Case (SOC), and remanded the issue of entitlement to a TDIU as inextricably intertwined. In its February 2017 decision, the Board noted that the case was to be returned to the Board only if the Veteran perfected his appeal by filing a timely VA Form 9 or Substantive Appeal. The Veteran did not perfect his appeal after the SOC was issued in May 2017. Instead, in May 2017, the RO returned the Veteran's claims file to the Board and notified him that his appeal would be decided. See May 2017 BVA Letter. Because VA has led the Veteran to believe that his claims remain in appellate status, the Board will take action on them. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). In its December 2017 decision, the Board denied entitlement to initial disability ratings in excess of 10 percent for the Veteran's lumbar spine disability, left knee degenerative joint disease, and left knee instability, and declined to refer the issue of entitlement to a TDIU for extraschedular consideration. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court) which, by way of a November 2018 Order, granted the parties' November 2018 Joint Motion for Partial Remand (JMPR), vacated the Board's December 2017 decision, and remanded the matter for further adjudication consistent with the JMPR. In a May 2018 rating decision, the RO awarded an increased rating of 20 percent for the Veteran's lumbar spine disability and a separate 0 percent rating for left knee degenerative joint disease involving limitation of flexion. In its May 2019 decision, the Board remanded the matters for additional development consistent with the November 2018 JMPR. In its November 2020 decision, the Board denied entitlement to disability ratings in excess of 20 percent for the Veteran's lumbar spine disability from December 28, 2017, in excess of 10 percent for left knee instability, and in excess of 10 percent for left knee degenerative joint disease. The Board also remanded the issues of entitlement to a disability rating in excess of 10 percent for a lumbar spine disability prior to December 28, 2017 and entitlement to a TDIU. The issue of entitlement to SMC at the housebound rate has been raised by the record and added to the instant appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Claims Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. 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 v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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 (ROM) 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."). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (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. Under the General Rating Formula, a 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined ROM of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. See id. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. See id. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent rating is available for unfavorable ankylosis of the entire spine. See id. 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 ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. DC 5242 was changed to clarify that it applied to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either 5003 or 5010). DC 5243, applicable to intervertebral disc syndrome, was changed to clarify that it is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 should be assigned for all other disc diagnoses. The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). 1. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability prior to December 28, 2017 The Veteran is currently in receipt of an initial disability rating of 10 percent for his lumbar spine disability for the appellate period prior to December 28, 2017. He asserts that a higher rating is warranted. On review of the evidence, both lay and medical, the Board finds that the manifestations of the Veteran's lumbar spine disability more nearly approximate the criteria for a disability rating of 20 percent under the General Rating Formula. Specifically, the evidence is in equipoise as to whether the Veteran's lumbar spine disability has been manifested by forward flexion greater than 30 degrees but not greater than 60 degrees. The Board notes that the June 2008 and March 2016 VA examination reports were found inadequate in the November 2018 JMPR. Even so, the lay information provided by the Veteran during the examinations is highly probative as to the severity of his lumbar spine disability. During the June 2008 VA back examination, the Veteran reported limited motion and constant dull achy pain in his midback that was moderate in severity, and during the March 2016 VA back examination, he reported flare-ups of his thoracolumbar spine, stating, "If I over exert myself, I can't move the next day." Notably, in a February 2011 VA primary care E & M note, the provider, a medical doctor, found that the Veteran had flexion of the thoracolumbar spine to "about 30 degrees, limited with pain." The Veteran was noted to have decreased range of motion of the thoracolumbar spine due to pain in private chiropractic treatment records dated June 2012 and August 2012 and in VA treatment records dated October 2014 and February 2015. In a September 2014 VA nursing note and a June 2012 private treatment record, the Veteran indicated that he had constant back pain that was worsened by movement, to include standing, walking, or spinal movements of most any type. For these reasons, the Board finds that the manifestations of the Veteran's lumbar spine disability more nearly approximate the criteria for a 20 percent disability rating under the General Rating Formula for the appellate period prior to December 28, 2017. The issue of entitlement to an initial disability rating in excess of 20 percent for the Veteran's lumbar spine disability prior to December 28, 2017 will be addressed in the Remand section below. 2. Entitlement to separate compensable disability ratings for radiculopathy of the bilateral lower extremities Separate ratings for neurological manifestations of a spine disability may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. DC 8520 provides ratings for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Sellers v. Wilkie, 30 Vet. App. 157 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. On review of the evidence, both lay and medical, the Board finds that for the entire period on appeal, separate ratings of 10 percent, each, for radiculopathy of the right and left lower extremities are warranted. At various points during the appeal period, the Veteran reported having pain that radiated from his low back down to both legs. See June 2008 VA back examination report; June 2012 private treatment record; private chiropractic treatment records dated June 2012 and August 2012; VA treatment records dated February 2011 to December 2017. He also reported experiencing numbness, tingling, and burning in both lower extremities. See June 2008 VA back examination report; VA treatment records dated February 2011 to December 2017; private chiropractic treatment records dated May 2012 to August 2012. The Veteran is competent to report such observable symptoms, and the Board has no reason to doubt the credibility of his reports. Indeed, providers in the June 2012 and August 2012 private chiropractic treatment records noted that foraminal compression and Jackson's compression tests were positive for pain and radiation on the right side, the February 2011 VA primary care provider noted decreased sensation to soft touch in the left leg, and the February 2015 VA primary care provider noted positive straight leg raising tests bilaterally. Additionally, in a December 2015 VA primary care E & M note, the provider noted that a past magnetic resonance imaging (MRI) study showed "multilevel thoracic and lumbar herniated disks with nerve s1 root impingement bilateral[ly]." While the Board acknowledges that the June 2008 and March 2016 VA examiners did not determine that the Veteran had radiculopathy of the lower extremities, the Board resolves all reasonable doubt in favor of the Veteran to find that his radicular symptoms and impairment more nearly approximate the criteria for a 10 percent rating under DC 8520. 38 C.F.R. § 4.3. However, the Board finds that a higher rating is not warranted as the Veteran's symptoms only include pain, numbness, and tingling, which are wholly sensory and considered mild in degree. Accordingly, the Board finds that the Veteran's symptoms and impairment more nearly approximate the criteria for separate ratings of 10 percent, each, for radiculopathy of the right and left lower extremities for the entire period on appeal. Finally, the competent evidence does not reflect any other objective neurologic abnormalities associated with the thoracolumbar spine disability, such as any in the bladder or bowel, so as to warrant any additional separate ratings. 3. Entitlement to a TDIU beginning October 27, 2014 It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 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. Here, the Veteran is in receipt of the following ratings for his service-connected disabilities: MDD (30 percent disability rating from October 27, 2014 and 70 percent disability rating from June 7, 2019), a 20 percent disability rating for a lumbar spine disability (effective February 2, 2008), a 10 percent disability rating for radiculopathy of the right lower extremity (effective February 2, 2008), a 10 percent disability rating for radiculopathy of the left lower extremity (effective February 2, 2008), a 10 percent disability rating for left knee instability (effective February 2, 2008), a 10 percent disability rating for left knee degenerative joint disease involving limitation of extension (effective February 2, 2008), a 10 percent disability rating for tinnitus (effective December 28, 2017), a noncompensable rating for right hand 5th metacarpal fracture (effective September 21, 2015), and a noncompensable rating for left knee degenerative joint disease involving limitation of flexion (effective December 28, 2017). Beginning October 27, 2014, the Veteran has a combined disability rating of 70 percent. The Veteran's lumbar spine disability and radiculopathy of the right and left lower extremities are disabilities resulting from a common etiology and have a combined disability rating of 40 percent. As such, they are considered "one disability" under 38 C.F.R. § 4.16(a). Accordingly, the Veteran meets the schedular threshold for a TDIU beginning October 27, 2014. The remaining question is whether the Veteran's service-connected disabilities have precluded the Veteran from securing and following a substantially gainful occupation since October 27, 2014. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). After careful consideration of the record and resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unemployable by reason of his service-connected disabilities beginning October 27, 2014. Specifically, the Board finds that the Veteran would not have been able to maintain any type of employment that was relevant to his educational background and work experience. In this regard, the Board notes that in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have 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. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As to the economic component of a substantially gainful occupation, the evidence is at least in equipoise as to whether the Veteran has been unemployed, or has had only marginal employment, since October 27, 2014. See VA examination reports dated April 2015, April 2018, and December 2019; November 2014 private "Mental Disorders" Disability Benefits Questionnaire (DBQ); VA treatment records dated September 2014 to January 2020. The Board acknowledges that in the March 2016 VA general medical examination report, the VA examiner indicated that the Veteran was currently employed full-time, writing, "Veteran is currently attending vocational rehabilitation on a full-time basis in preparation for a career change." However, full-time vocational rehabilitation does not equate to full-time employment. Additionally, while the Veteran reported doing some intermittent freelance IT work and had an internship as a help desk administrator from July 2016 to December 2016, there is no evidence that these jobs earned more than marginal income. See February 2019 VA Special Report of Training; VA treatment records dated October 2019 to December 2019; VA mental disorders examination reports dated April 2018 and December 2019. Indeed, in VA mental health social worker notes dated February 2017 to December 2017, the Veteran reported that his current income was only from his service-connected disabilities, and he indicated in VA treatment records dated October and November 2019 that he was still seeking "a regular job." Thus, after resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran did not work in a gainful capacity at any point during the appellate period beginning October 27, 2014. As to the non-economic component of a substantially gainful occupation, the Veteran's work history was as a security guard, cable installer, a K-mart employee, in freelance IT work, and help desk administrator intern, and his educational background is in IT and cybersecurity. The Veteran's ability to complete the physical demands of his occupational duties have been severely impacted by his service-connected lumbar spine, left knee, and right-hand disabilities. Collectively, the Veteran's orthopedic disabilities impact his ability to lift and carry objects, bend and twist, walk or stand for prolonged periods of time, and grasp objects or type for prolonged periods of time. See November 2014 private "Mental Disorders" DBQ; January 2015 VA Counseling Record-Narrative Report; VA examination reports dated March 2016, April 2018, and June 2018; VA treatment records dated November 2008. Furthermore, the Veteran's mental ability to perform the type of activities required by his occupations have been severely impacted by his service-connected MDD and its associated symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. See November 2014 private "Mental Disorders" DBQ; January 2015 VA Counseling Record-Narrative Report; VA mental disorders examination reports dated April 2015, April 2018, and December 2019. Based on the foregoing, the Board finds that a TDIU predicated on unemployability stemming from the Veteran's service-connected disabilities is warranted beginning October 27, 2014. Entitlement to a TDIU for the appellate period prior to October 27, 2014 will be addressed in the Remand section below. 4. Entitlement to a TDIU based solely on the Veteran's service-connected MDD beginning June 7, 2019 As awarded above, the Veteran is now in receipt of a TDIU based on all his service-connected disabilities, effective October 27, 2014. However, VA's duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114, even when the Veteran is already in receipt of a TDIU based on multiple service-connected disabilities. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). 38 U.S.C. § 1114(s) provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional service-connected disability or disabilities independently ratable at 60 percent or more; or, is permanently housebound due to service-connected disabilities. A TDIU rating can satisfy the need for a rating of 100 percent if it can be sustained by a single disability. Buie, 24 Vet. App. at 250-51 (2011). Controlling laws provide that a TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. Effective June 7, 2019, the Veteran is in receipt of a 70 percent disability rating for MDD. Therefore, the Veteran met the schedular requirement for a TDIU, based solely on his MDD, as of June 7, 2019. The remaining question is whether his MDD, alone, precludes the Veteran from securing and following a substantially gainful occupation. For the reasons expressed below, and for the purpose of establishing entitlement to SMC at the housebound rate, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to maintain substantially gainful occupation due solely to his MDD beginning June 7, 2019. Specifically, considering the Veteran's occupational and educational background, which suggests that his inability to work is impacted, at least in part, by his service-connected MDD, the Board finds that the Veteran is able to maintain any type of employment that is relevant to his educational background and work experience. In this regard, the Board notes that in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have 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. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As to the economic component of a substantially gainful occupation, the evidence shows that the Veteran has been unemployed, or has had only marginal employment, since June 7, 2019. See VA treatment records dated July 2019 to January 2020; December 2019 VA mental disorders examination report. Although the Veteran reported doing some freelance IT work at a law firm for 4 hours a week, there is no evidence that this job was more than part-time or earned more than marginal income, particularly since the Veteran is still seeking a "regular job." See VA treatment records dated October 2019 and November 2019; December 2019 VA mental disorders examination report. Thus, the Board finds that the Veteran has not worked in a gainful capacity since June 7, 2019. As to the non-economic component of a substantially gainful occupation, Veteran's work history was as a security guard, cable installer, a K-mart employee, in freelance IT work, and help desk administrator intern, and his educational background is in IT and cybersecurity. The Veteran's mental ability to perform the type of activities required by such occupations are severely impacted by his service-connected MDD and its associated symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting, suicidal ideation, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. See December 2019 VA mental disorders examination report. Indeed, the December 2019 VA mental disorders examiner opined that the Veteran's MDD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Based on the foregoing, and for the purpose of establishing entitlement to SMC at the housebound rate, the Board finds that a TDIU predicated on unemployability stemming solely from Veteran's service-connected MDD is warranted beginning June 7, 2019. 5. Entitlement to SMC at the housebound rate As previously mentioned, SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s). This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i). A TDIU rating can satisfy the need for a rating of 100 percent if it can be sustained by a single disability. Buie, 24 Vet. App. at 250-51. Herein, pursuant to VA's duty to maximize a claimant's benefits, the Veteran is awarded a TDIU based solely on his service-connected MDD beginning June 7, 2019. The Veteran also has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability (MDD) and involving different anatomical segments or bodily systems. Apart from his disability rating for MDD, the Veteran is also in receipt of a 20 percent disability rating for a lumbar spine disability (effective February 2, 2008), a 10 percent disability rating for radiculopathy of the right lower extremity (effective February 2, 2008), a 10 percent disability rating for radiculopathy of the left lower extremity (effective February 2, 2008), a 10 percent disability rating for left knee instability (effective February 2, 2008), a 10 percent disability rating for left knee degenerative joint disease involving limitation of extension (effective February 2, 2008), a 10 percent disability rating for tinnitus (effective December 28, 2017), a noncompensable rating for right hand 5th metacarpal fracture (effective September 21, 2015), and a noncompensable rating for left knee degenerative joint disease involving limitation of flexion (effective December 28, 2017). Effective December 28, 2017, these additional service-connected disabilities combine to a rating of 60 percent and are separate and distinct from the Veteran's MDD, as they involve different anatomical segments or bodily systems. Accordingly, as the Veteran has a single service-connected disability rated as total (MDD), and he has additional service-connected disabilities that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met beginning June 7, 2019. REASONS FOR REMAND 1. For the appellate period prior to December 28, 2017, entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran asserts that he is entitled to a rating in excess of 20 percent for his lumbar spine disability prior to December 28, 2017. The Board regrettably finds that another remand is necessary to ensure substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In its November 2020 decision, the Board remanded the matter to obtain a retrospective opinion. Specifically, the Board requested a retrospective opinion addressing: (a) functional limitations of the Veteran's lumbar spine disability due to repetitive use and flare ups from February 2008 to December 2017; (b) whether joint testing of the Veteran's thoracolumbar spine would have shown objective evidence of pain in passive motion and in non-weight-bearing motion; and (c) if it was not possible to provide a retrospective opinion without speculation, whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. In January 2021, a VA examiner provided the following retrospective opinion, "With regard to Sharp v. Shulkin: BASED ON A REVIEW OF THE EVIDENCE OF RECORD, *including* the veteran's lay testimony and available medical records (see below); the level of additional loss of function or motion with regard to repetitive use or flareup varies with the veteran's level of pain. For this Veteran, there is no persistent evidence of record (testimony or medical records), considered to be valid or reproducible for ratings purposes that indicates a loss of function during these conditions. The veteran states the level of additional loss of function or motion with regard to repetitive use or flareup varies with the veteran's level of pain." The January 2021 VA examiner then listed the medical evidence he relied upon to render the opinion. On review, the Board finds the January 2021 VA retrospective opinion inadequate. The January 2021 VA examiner failed to address whether joint testing of the Veteran's thoracolumbar spine would have shown objective evidence of pain in passive motion and in non-weight-bearing motion, as requested in the Board's November 2020 remand directives. Additionally, the examiner failed to explain why there was "no persistent evidence of record (testimony or medical records), considered to be valid or reproducible for ratings purposes" showing additional loss of function or motion with regard to repetitive use or flareup. Notably, in a February 2011 VA primary care E & M note, the provider, a medical doctor, determined that the Veteran was having an "acute flare up" of his chronic low back pain and on physical examination the Veteran was found to have "flexion about 30 degrees, limited with pain, full extension, lateral bending about 25 degrees bilaterally, rotation intact." During the March 2016 VA back examination, the Veteran reported experiencing flare-ups of his back, stating, "If I over exert (sic) myself, I can't move the next day." On remand, the VA examiner should specifically address this evidence when providing a retrospective opinion. 2. For the appellate period prior to October 27, 2014, entitlement to a TDIU is remanded. The Veteran does not meet the schedular criteria for a TDIU for the appellate period prior to October 27, 2014 as he only has a combined disability rating of 50 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled and that Veterans who fail to meet the schedular criteria for a TDIU rating shall be considered for such a rating on an extra-schedular basis. See 38 C.F.R. § 4.16(b). The Board may not award a TDIU on an extraschedular basis in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Rather, the Board must determine if the evidence warrants referral to the Director of Compensation and Pension Service for consideration of an extraschedular TDIU. A referral decision under 38 C.F.R. § 4.16(b) is based on a lower evidentiary threshold than that required for a grant of an extraschedular TDIU. See Ray, 31 Vet. App. at 62. Here, the evidence suggests that the Veteran's service-connected disabilities may have impacted his ability to work during the appellate period prior to October 27, 2014. In a September 2014 VA nursing note, the Veteran reported constant aching pain in his back rated 6 out of 10 in severity that was worsened by movement and affected his lifestyle due to his mood and not being able to work. Additionally, in a November 2014 private "Mental Disorders" DBQ, the Veteran reported that he worked in security during his spouse's pregnancy but was forced to leave his position due to chronic back pain which was exacerbated by his job requirements. He further reported that he had been unable to hold down a job since 2007. Based on the foregoing, the Board finds that referral for extraschedular consideration is warranted. Furthermore, in its November 2020 decision, the Board requested that the RO make an additional attempt to obtain the underlying documents related to the Veteran's application and approval of VA vocational rehabilitation and employment benefits and associate them with the claims file, or otherwise make a formal finding of unavailability. While the record contains numerous documents pertaining to the Veteran's vocational rehabilitation, there is no indication that the RO substantially complied with the Board's remand directives following its November 2020 decision. Since this matter is being remanded for referral to the Director, the Board finds that, in accordance with its November 2020 decision, the RO should make an additional attempt to obtain the underlying documents related to the Veteran's application and approval of VA vocational rehabilitation and employment benefits and associate them with the claims file, or otherwise make a formal finding of unavailability. Accordingly, the matters are REMANDED for the following actions: 1. Obtain an addendum VA medical opinion from the examiner who conducted the March 2016 VA examination, if possible. If this is not possible, the medical opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner for the pertinent history of this disability. If another examination is indicated, one should be provided to the Veteran. After review of the claims file, the examiner is asked to provide a RETROSPECTIVE ANALYSIS of the severity of the Veteran's lumbar spine disability for the period between February 2, 2008 and December 28, 2017. The examiner is asked to address each of the following: (a) Provide an opinion regarding functional limitations of the Veteran's lumbar spine disability due to repetitive use and flare ups based on the Veteran's lay statements of experienced symptomatology. If possible, report the functional limitations in terms of additional degrees of limitation of motion. * Specifically, address the following evidence: ** February 2011 VA primary care E & M note (the provider, a medical doctor, determined that the Veteran was having an "acute flare up" of his chronic low back pain and on physical examination the Veteran was found to have "flexion about 30 degrees, limited with pain, full extension, lateral bending about 25 degrees bilaterally, rotation intact."). ** March 2016 VA back examination report (the Veteran reported experiencing flare-ups of his back, stating, "If I over exert (sic) myself, I can't move the next day."). (b) If possible, address whether joint testing of the Veteran's thoracolumbar spine would have shown objective evidence of pain in passive motion and in non-weight-bearing motion. If possible, report the functional limitations in terms of additional degrees of limitation of motion. (c) If it is not possible to provide a retrospective opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 2. Obtain the underlying documents related to the Veteran's application and approval of VA vocational rehabilitation and employment benefits and associate them with the Veteran's claims file. Efforts to obtain these records from all potential sources should be documented, and if not found, a formal finding as to their unavailability should be prepared and associated with the claims file. 3. If the Veteran remains ineligible for a schedular TDIU, refer the Veteran's claim to the Director of Compensation and Pension Service for consideration of an extraschedular TDIU for the appellate period prior to October 27, 2014. (Continued on the next page) 4. Then, readjudicate the remanded claims on appeal. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate 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.