Citation Nr: 21029643 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-54 696 DATE: May 14, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for degenerative arthritis of the lumbar spine is granted. Entitlement to an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy is granted. Entitlement to a separate rating for bladder dysfunction as secondary to service-connected lumbar spine from February 19, 2018 is granted. Entitlement to service connection for a right myofascial strain injury with associated tendonitis is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, for the entire period on appeal the Veteran's lumbar strain more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; it was not likely manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis; episodes of intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period; or objective neurologic abnormalities aside from the service connected radiculopathy of the lower extremities and service-connected bladder disability. 2. Resolving all reasonable doubt in favor of the Veteran, the right lower extremity radiculopathy affecting the sciatic nerve has manifested to moderate incomplete paralysis from the date of the claim. 3. The competent and credible evidence of record demonstrates that the Veteran has bladder dysfunction associated with his service-connected lumbar spine disability. 4. The competent and credible evidence of record is at least in equipoise that the Veteran's right myofascial strain injury with associated tendonitis is due to his service. 5. The competent and credible evidence of record is at least in equipoise that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for degenerative arthritis of the lumbar spine with IVDS, for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237 (2020). 2. The criteria for an initial rating of 20 percent, but not higher, for service-connected right lower extremity radiculopathy affecting the sciatic nerve are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 3. The criteria for entitlement to service connection for bladder dysfunction as secondary to the service-connected degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.310. 4. The criteria for entitlement to service connection for a right myofascial strain injury with associated tendonitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.18, 4.19, 4.3. 5. The criteria for entitlement to TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.18, 4.19, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) from March 2015 and February 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A March 2015 rating decision adjudicated the Veteran's entitlement to service connection for tinnitus, hearing loss, eczema, carpal tunnel, plantar fasciitis, back pain, left fifth finger, heart disease and a right myofascial strain; but the Veteran perfected his appeal only for his claim of entitlement to service connection for the right hand (see April 2015 Notice of Disagreement (NOD), October 2016 Statement of the Case (SOC), and November 2016 VA Form 9). While the March 2015 rating decision was pending appeal, the Veteran filed claims of entitlement to increase rating for his gastroesophageal reflux disease (GERD) and headaches, and service connection for degenerative arthritis of the lumbar spine, radiculopathy of the right lower extremity, and hearing loss. A February 2017 rating decision was issued denying the increased rating claims for GERD and headaches, granting service connection for his lumbar spine at 10 percent and right lower extremity radiculopathy at 10 percent and denied service connection for hearing loss. The Veteran perfected his appeal for the initial evaluation for his service-connected lumbar spine and radiculopathy of the right lower extremity only (see May 2017 Notice of Disagreement, December 2018 Statement of the Case, and February 2019 VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in an August 2020 hearing on the merged appeals of the March 2015 and February 2017 rating decisions; a transcript of the hearing is of record. The Veteran had two distinct appeals pending before the Board with separate docket numbers. These appeals have been merged, and the combined appeal has been assigned the earlier docket number. The Board has added the issue seeking entitlement to a separate rating for bladder impairment as secondary to the service-connected lumbar spine disability, as such has been raised by the record and is part of the current appeal before the Board seeking an increased rating for the service-connected lumbar spine disability. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). The RO deferred a claim for TDIU in a February 2019 rating decision and has not provided a decision on the issue. However, the issue of unemployability has been raised by the record as part of the Veteran's increased rating claim; therefore, the issue of entitlement to a TDIU is added to the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). Increased Rating Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505. Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 1. Entitlement to an initial rating of 20 percent, but no higher, for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) The Veteran contends that his lumbar spine is more severe than is currently rated. The Veteran's lumbar spine is currently rated as 10 percent disabling, from October 3, 2016, and 20 percent from December 5, 2017, under the appropriate DC 5242. The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provide the criteria for rating spinal disabilities with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or where the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities including, but not limited to bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). 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; 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 criteria."). Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal; and a 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is 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). Upon review of the record, the Board finds an initial rating of 20 percent, but no higher, is warranted for the entire period on appeal. A May 2014 private treatment record documented low back pain with pain and numbness down his right leg and weakness in his legs. See Wake Forest Baptist Medical Records. A June 2014 MRI showed the Veteran's chronic lower back pain with medial right leg pain and numbness. See June 2014 Novant Health Records. A July 2014 private treatment record documented limited range of motion in flexion, extension, rotation and side bending, normal strength testing in the upper and lower extremities, tight paraspinal muscles in the lumbar area and an abnormal gait with movement altered by pain. See Wake Forest Baptist Medical Records. A September 2015 private treatment record showed degenerative disc disease of the lumbar spine with tenderness to palpation over the lumbar spine and paraspinal musculature, limited range of motion in flexion and needed to bend his knees to touch his toes. Id. A January 2017 VA examination found the Veteran had an initial range of motion of forward flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees and right and left lateral rotation to 30 degrees. There was no pain on weight bearing, no flare ups or guarding, normal muscle strength with no atrophy and absent deep tendon reflexes. The sensory exam was normal, negative straight leg test, but intermittent pain to the left lower extremity and mild paresthesias and/or dysesthesias to the right lower extremity with mild right-side radiculopathy. There was no ankylosis or IVDS but documented arthritis. The examiner failed to identify additional functional loss due to inability to speculate. A December 2017 VA treatment note found mild to moderate multilevel disc height loss, moderate to severe fact arthrosis and mild right neural foraminal narrowing. The Veteran complained of an inability or difficulty with dressing, showering, prolonged sitting, standing and ambulation and difficulty with stairs. He reported sleeping with his legs elevated, constant gnawing, dull ache with intermittent radiculopathy into the bilateral posterior buttocks, thighs, calves and feet. He had limited flexion to 45 degrees, limited extension to 10 degrees, left and right lateral rotation was not attempted due to anterolisthesis and right and left lateral side bending provoked pain to roughly 20 degrees. He had reduced strength in his bilateral hips and knees, tenderness to palpation at the midspine and positive straight leg test at 60 degrees. He was issued a corset back brace to increase support. In a February 2018 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine and IVDS. The Veteran complained of severe pain. He described flareups of the back as difficulty walking and limiting his ability to perform normal daily activities. He reported functional impairments as an inability to lift 20 pounds or more, numbness and tingling in legs and feet, a constant dull and throbbing pain in the lower back and neck to include headaches, stiffness in the neck and keeps him bed ridden for several hours daily. His initial range of motion measured forward flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 10 degrees. His range of motion contributes to functional loss as he is unable to lean forward and pick things up off the floor, turn his torso to the side effectively, cannot lift or carry heavy objects, cannot run and has difficulty walking due to back and leg pain. Objective pain was noted on exam and causes additional functional loss on all ranges of motion, evidence of pain with weight bearing and pain on palpation throughout the lumbar and thoracic spine. Additional loss after three repetitions found forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees and left lateral rotation to 10 degrees with factors of pain, fatigue, weakness and lack of endurance. Pain, weakness, fatigability and lack of endurance significantly limits functional ability with flare ups. There was evidence of muscle spasms resulting in abnormal gait or spine contour. There was less movement than normal due to limitation or blocking, weakened movement due to muscle or peripheral nerves, swelling, instability of state, disturbance of locomotion, interference with sitting and standing. There was decreased muscle strength bilaterally with no muscle atrophy, a normal sensory exam on the right and decreased on the left, with severe numbness, paresthesias and constant pain on the left and moderate constant and intermittent pain with moderate numbness on the right with involvement of the sciatic and femoral nerves bilaterally. There was no ankylosis found but found the Veteran had mild saddle anesthesia with difficulty urinating and leakage upon completion. In a January 2021 VA examination, the Veteran reported lower back pain that radiates down the legs and his feet get numb and it gets worse with prolonged sitting or standing. The initial range of motion was record at forward flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees with pain noted on all ranges of motion. There was pain with weight bearing, objective evidence of localized tenderness described as bilateral para-vertebral spasm. There was additional loss of range of motion on repetitive use, no pain, weakness, fatigability or incoordination limit to functional ability with flareups. A muscle spasm not resulting in an abnormal gait or abnormal spine contour, no guarding, normal muscle strength and no atrophy, normal deep tendon reflexes, normal sensory exam. There was bilateral radiculopathy with mild intermittent pain and numbness, no ankylosis or other neurologic abnormalities. There was recorded IVDS with no required bed rest prescribed in the past 12 months. The Board finds that a rating in excess of 20 percent is not warranted for the Veteran's low back disability under the General Rating Formula for Diseases and Injuries of the Spine. A higher rating of 40 percent requires a showing of forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence does not show limitation of motion to 30 degrees or less or any ankylosis. Accordingly, the Board finds that a higher disability rating is not warranted for the Veteran's low back disability under these criteria. The Board has also considered whether the Veteran is entitled to any separate ratings for any neurologic conditions. As evaluated above, the Veteran is separately service connected for bilateral radiculopathy of the femoral and sciatic nerves. As explained below, the Board finds the Veteran's back disability warrants a separate rating for bladder impairment as secondary to his low back disability. There is no indication of any other further neurological impairment from the back. Additionally, the evidence does not show the Veteran had incapacitating episodes. Note (1) of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes defines an incapacitating episode as 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. There is no evidence indicating that the Veteran experienced incapacitating episodes requiring prescribed bed rest for at least 4 weeks during a 12-month period. As there is no evidence of required physician-prescribed bed rest, a higher rating is not warranted under the rating criteria for IVDS. In sum, the Board concludes that the Veteran is entitled to a 20 percent, but no higher, rating for his low back disability. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 2. Entitlement to an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy The Veteran contends that his right lower extremity radiculopathy is more severe than is currently rated. He testified that his right leg can be in excruciating pain and it is in pain constantly. See August 2020 Hearing Transcript at p. 35. The Veteran's right lower extremity radiculopathy affecting the sciatic nerve is currently rated as 10 percent disabling, from October 3, 2016, the date of claim, under the appropriate DC 8520. Under DC 8520, a 10 percent evaluation is warranted for mild incomplete paralysis; a 20 percent evaluation is warranted for moderate incomplete paralysis; a 40 percent evaluation is warranted for moderately severe incomplete paralysis; a 60 percent evaluation is warranted for severe, with marked muscular atrophy, incomplete paralysis; and the highest evaluation of 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. A May 2014 private treatment record documented low back pain with pain and numbness down his right leg and weakness in his legs. See Wake Forest Baptist Medical Records. A June 2014 MRI showed the Veteran's chronic lower back pain with medial right leg pain and numbness. See June 2014 Novant Health Records. A June 2017 VA examination of the thoracolumbar spine noted a normal sensory exam, mild paresthesias or dysesthesias of the right lower extremity and absent deep tendon reflexes in the lower extremities. The examiner found the Veteran's radiculopathy to be mild. A February 2018 VA examination of the peripheral nerves found that the Veteran had constant and intermittent severe pain in the right lower extremity, and severe paresthesias and/or dysesthesias and numbness in the right lower extremity. The examination found decreased muscle strength in the knee and ankle with no muscle atrophy. The sensory exam was normal, deep tendon reflexes were hypoactive in the lower extremities and there was evidence of trophic changes. A February 2018 VA examination of the thoracolumbar spine found the Veteran to have moderate constant and intermittent pain with moderate numbness on the right and the examiner found the Veteran's radiculopathy to be moderate. A January 2021 VA examination of the thoracolumbar spine found the Veteran had normal muscle strength and deep tendon reflexes with no muscle atrophy and radiculopathy with mild intermittent pain and numbness. Based on the above, the Board finds that an increased rating of 20 percent is warranted for the Veteran's right lower extremity radiculopathy affecting the sciatic nerve, from October 3, 2016, the date of the claim. The evidence of record during this appeal period is sufficient to meet the criteria under DC 8520 for an evaluation of 20 percent, as the severity of the Veteran's right lower extremity radiculopathy has consistently revealed symptoms that more closely approximate a moderate severity level; which is commensurate of a 20 percent evaluation under DC 8520. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that an increased rating of 20 percent, but not higher, for the Veteran's service-connected right lower extremity radiculopathy affecting the sciatic nerve, for the period on appeal, is warranted; and to this extent, the claim is granted. The Board notes that the weight of the evidence of record is against a rating in excess of 20 percent during this period on appeal, as the Veteran's bilateral lower extremity radiculopathy does not rise to the severity level of moderately severe or severe incomplete paralysis; or complete paralysis. Even with consideration of symptoms such as pain, the Veteran's bilateral lower extremity disabilities have not more nearly approximated a moderately severe sciatic nerve disability for the period under review. 3. Entitlement to a separate rating for bladder dysfunction as secondary to service-connected lumbar spine from February 19, 2018 A February 2018 VA examination raised the issue of entitlement to a separate rating for bladder dysfunction as secondary to the Veterans' back disability. Because neurological symptoms are part and parcel of the Veteran's claim for an increased rating for his back disability, the matters on appeal include a potential separate rating for bladder dysfunction secondary to the Veteran's service-connected back disability. Cf. 38 C.F.R. 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1; see also A.B. v. Brown, 6 Vet. App. 35, 38-39 (1993). Accordingly, this issue has also been added to the case. The Board notes that the February 2018 VA examination indicated neurologic impairment of the bladder, as objective neurologic abnormalities of the lumbar spine disability. The examiner stated that the Veteran had difficulty urinating and leakage upon completion and diagnosed mild saddle anesthesia. Thus, the Board finds that the Veteran has neurological abnormalities manifested by a bladder impairment related to the lumbar spine disability. As neurological manifestations of a spine disorder are to be related separately, the Board finds that the Veteran is entitled to a separate rating for his bladder impairment. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 4. Entitlement to service connection for a right myofascial strain injury with associated tendonitis The Veteran contends that his hand disability is due to his service. Specifically, he reports that while he was stationed in Iraq, he complained of stiff joints in the hands due to continuous pulling, loading trucks and strapping cargo. See August 2020 Hearing Transcript. The evidence of record shows that the Veteran was diagnosed with trigger finger of the right little and ring fingers. See June 2015 Medical Treatment Record. Thus, the first element of service connection has been established. The remaining inquiry is whether the diagnosis was due to service. See 38 C.F.R. § 3.310. In reviewing the record, a March 15, 2004 post-deployment health assessment documented Veteran complaints of stiffening of joints in hands that were treated conservatively. An undated sick call slip documented stiff joints and prescribed Nexium. Additionally, in June, July and September 2009 medical treatment notes, while the Veteran was on active duty, the Veteran complained of pain in his hands and was diagnosed with medial epicondylitis. The Veteran underwent a VA examination in September 2013 wherein the examiner found the Veteran's right-hand disability was "not caused by military service". By way of rationale, the examiner stated there was no documented chronic right-hand conditions in his service treatment records (STR), contrary to the documentation noted above. The Board finds that all available evidence favors a finding that the Veteran's right-hand disability is due to service. The September 2013 VA examination failed to provide an adequate opinion as to whether the Veteran's hand disability was due to service, predicating his opinion on a lack of documentation in service, and failing to account for the Veteran's reports of continuing problems with the right hand since service. Resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's right-hand disability is warranted. 5. Entitlement to TDIU The Veteran seeks entitlement to a TDIU contending that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more. If there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). Substantially gainful employment also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342, 356 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran meets the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16 (a). He is in receipt of service-connected benefits including 50 percent for PTSD, 30 percent for headaches, 20 percent for degenerative arthritis of the lumbar spine, 20 percent for right femoral nerve radiculopathy, 20 percent for left femoral nerve radiculopathy, 10 percent for anxiety, 10 percent for left sciatic nerve radiculopathy, 10 percent for right sciatic nerve radiculopathy, 10 percent for tinnitus and 0 percent for erectile dysfunction. His combined total rating is 90 percent from December 5, 2017. The remaining inquiry is whether the Veteran's service-connected disabilities render the Veteran unable to secure or follow substantially gainful employment. The Veteran reported that he completed high school and had two years of college education. See November 2020 VA Form 21-8940. The Veteran reported having been employed part-time at Advance Auto Part from April 2019 to July 2019, part-time at Bunzl Distribution from May 2016 to March 2018, and part-time at Pro Drivers from August 2015 to May. Id. The Veteran has been in receipt of social security benefits since May 2017 due to severe impairments of lumbar disc disease, degenerative joint disease of the knees, and degenerative joint disease of the right shoulder, finding that the Veteran is "unable to perform any past relevant work as a tractor-trailer truck driver ... [t]he demands of the claimant's past relevant work exceed the residual functional capacity". See SSA Medical Records. The Veteran reports that he quit his job due to difficulties "because I was hired as a driver to deliver parts to customers but the company wanted me to do heavy lifting, climb ladders which was a safety hazard in accordance to my physical abilities". See November 2020 VA Form 21-8940. The evidence of record suggests that the Veteran's service-connected disabilities impairs his ability to function in the workplace. In a brief to SSA the Veteran's representative argued that the Veteran's "physical impairments cause him to be unable to stand or walk for prolonged periods such that he is unable to sustain the residual functional capacity for more than sedentary work" and that his mental incapacitation would limit the Veteran to unskilled work. See SSA Medical Records at p. 51. In a January 2017 VA examination, the Veteran reported that he was working part-time as a truck driver and was physically incapable of a full-time truck driving job because of his chronic daily back pain. In a January 2021 VA examination for the Veteran's PTSD, the examiner found that the Veteran had not worked for several years due to his physical problems and noted that "[h]is current level of anxiety, depression, insomnia, decreased energy, and attention and concentration problems, irritability, etc. would be expected to cause at least moderate occupational impairment." In a January 2021 VA examination for the Veteran's service-connected headaches, the examiner found it to be "highly unlikely he would be able to maintain himself in most typical full time job settings since he would be unable to work at least on average one or two days per week because of headache pain". Therefore, in weighing the lay and medical evidence of record, as well as the Veteran's educational background and prior work history, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment. Based on the foregoing, and resolving all doubts in the Veteran's favor, the Board finds that TDIU is warranted as the Veteran's service-connected disabilities preclude him from participating in any substantially gainful employment consistent with his education and work experience. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.