Citation Nr: 21030023 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-38 059 DATE: May 17, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability for the period prior to May 23, 2014, is denied. Entitlement to a disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine disability for the period beginning May 23, 2014, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal beginning May 23, 2014, is granted. FINDINGS OF FACT 1. For the period prior to May 23, 2014, the Veteran's lumbar spine disability more closely approximated the symptomatology considered for a 20 percent disability rating. 2. For the period beginning May 23, 2014 the Veteran's lumbar spine disability more closely approximated the symptomatology considered for a 40 percent disability rating. 3. For the period beginning May 23, 2014, the evidence of the record indicates that the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial disability rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability for the period prior to May 23, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for establishing entitlement to a disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine disability for the period beginning May 23, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria for establishing entitlement to a TDIU for the period on appeal beginning May 23, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.401, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1962 to October 1964. He died in June 2020. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in December 2020, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with a supplemental statement of the case (SSOC) which addressed VA medical records associated with the claims file after the last May 2019 Board decision. The Veteran was provided with an adequate SSOC in December 2020. As such, the Board finds that the AOJ substantially complied with the directives in the December 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Lumbar SpineLegal Criteria Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). However, as noted above, the Veteran died in July 2020, prior to the implementation of the new regulations. Additionally, the periods of the claim on appeal would therefore be entirely prior to the possible effective date of the new regulations. As such, the Board will apply the regulations in effect prior to the rating schedule revision. The Veteran's lumbar spine disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a 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. A 20 percent rating is assigned for 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; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation. In relevant part, the Veteran's IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under DC 5243 an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Period Prior to May 23, 2014 The Appellant contends that the Veteran is entitled to an initial disability evaluation in excess of 20 percent for his service-connected lumbar spine disability for this period. For the reasons explained below, the Board disagrees and denies the Appellant's claim for a rating in excess of 20 percent for the period prior to May 23, 2014. VA and private treatment records during this period of the appeal indicate that the Veteran received treatment for back pain and degenerative disc disease of the lumbar spine. The Board specifically notes a June 2006 private chiropractor treatment note where the Veteran reported pain in his lower back when he would lay down and his range of motion (ROM) was recorded as: flexion to 54 degrees, extension to 23 degrees, left lateral flexion to 23 degrees, and right lateral flexion to 21 degrees. Further, the Board notes an October 2013 VA physical therapy note which indicated the Veteran was experiencing lumbar spine pain which improved with therapy. The physical therapy note also included citations to previous therapy notes wherein the Veteran reported experiencing a flare up of lower back pain in September 2013 and two days later reported he felt better after physical therapy. The Board also notes a November 2013 VA physical therapy note where the Veteran reported "I'm stronger and I can bend over now and touch my shoes. I couldn't do that before [beginning physical therapy]." The Veteran was initially afforded a May 2008 VA examination for his lumbar disability claim. The VA examiner indicated that the Veteran did not experience flare-ups of his spinal condition, did not experience IVDS, and did not experience ankylosis of his spine. The Veteran's ROM was as follows: forward flexion of the thoracolumbar spine to 70 degrees, extension to 20 degrees with pain beginning at 15 degrees, right and left lateral flexion to 25 degrees, and right and left rotation to 20 degrees. The examiner noted that functional loss was due to pain, fatigue, and lack of endurance. Further, the examiner noted that the Veteran experienced pain on active and passive range of motion but with no additional loss of use with repetitive use. The Veteran was next provided with an April 2010 VA examination regarding his claimed lumbar spine disability. The Veteran did not report flare-ups on the examination and the examiner indicated that there was no further loss of use with repetition. The Veteran's ROM was as follows: forward flexion of the thoracolumbar spine of 70 degrees, extension of 20 degrees, right and left lateral flexion of 20 degrees, and right and left rotation of 20 degrees. The examiner noted that there was no evidence of pain on the Veteran's active range of motion. However, the examiner noted that the Veteran experienced thoracolumbar spine ankylosis in part of the thoracolumbar spine with no indications of unfavorable ankylosis. No IVDS was reported. During an August 2010 Board hearing, the Veteran reported experiencing pain throughout his spine that was worsening. He reported the pain makes movement and bending difficult and that he was afraid of falling. In response to a Board remand, the Veteran was next provided an August 2011 VA examination regarding his claimed back condition. The examiner reported that the Veteran had no history of spine condition flare-ups and no objective evidence of pain on active range of motion or additional limitation with repetitive motion. The Veteran's ROM was as follows: forward flexion of the thoracolumbar spine of 50 degrees, extension of 0 degrees, right and left lateral flexion of 0 degrees, and right and left rotation of 5 degrees. The examiner reported that the Veteran experiences muscle spasm or guarding severe enough to be responsible for abnormal gait or spinal contour. Additionally, the examiner reported that the Veteran experienced ankylosis of part of his thoracolumbar spine with neurologic symptoms due to nerve root stretching. No IVDS was reported. Upon careful consideration of the evidence, the Board determines that a disability rating in excess of 20 percent for the Veteran's lumbar spine disability for the period prior to May 23, 2014, is not warranted. The 20 percent rating contemplates the Veteran's limitation of forward flexion to greater than 30 degrees but not greater than 60 degrees with pain observed with movement. Additionally, the 20 percent rating contemplates the Veteran's muscle spasms and guarding he experienced which were severe enough to result in abnormal gait or abnormal spinal contour. A rating in excess of 20 percent would require a limitation of motion to the Veteran's forward flexion of 30 degrees or less, favorable/unfavorable ankylosis of the Veteran's entire thoracolumbar spine, or IVDS with incapacitating episodes of at least 4 but less than 6 weeks. The Board notes that while ankylosis was reported, it was noted to only be partial ankylosis of the spine, not total. Further, the Board notes that the Veteran did not report flare-ups in his condition until a single instance in September 2013. However, two days after reporting the flare-up the Veteran noted that his physical therapy made him feel better. Additionally, this single reported flare-up during this period was also surrounded by reports of no flare ups, as well as, physical therapy reducing the Veteran's pain and increasing his range of motion. Indeed, in November 2013, the Veteran reported being able to bend over and touch his shoes which he had previously been incapable of. As such, the Board does not find evidence that the Veteran experienced flare-ups which reduced his functional limitation greater than that reported by the August 2011 VA examination (which provides the measurements demonstrating the most severe impairments to the Veteran's lumbar spine). The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserted that his condition entitled him to a disability rating higher than 20 percent, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As noted above, the rating criteria requires that for a rating in excess of 20 percent the Veteran must have IVDS with incapacitating episodes at least 4 weeks in duration, or favorable/unfavorable ankylosis of the entire thoracolumbar spine. However, the medical evidence shows that the Veteran did not have IVDS or total thoracolumbar ankylosis and as such, the Board assigns greater weight to the medical evidence. Based on the foregoing, the totality of the evidence shows that the disability picture for the Veteran's lumbar disability warrants a 20 percent rating for this period on appeal. However, the preponderance of the evidence is against the assignment of a higher rating. 38 C.F.R. § 3.102. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Period Beginning May 23, 2014 The Appellant contends that the Veteran is entitled to a disability evaluation in excess of 40 percent for his service-connected lumbar spine disability for this period. For the reasons explained below, the Board disagrees and denies the Appellant's claim for a rating in excess of 40 percent for the period beginning May 23, 2014. The Veteran's treatment records during this period of the appeal indicate that the Veteran continued to received treatment for back pain and degenerative disc disease of the lumbar spine. The Board notes an April 2017 treatment record where the Veteran reported that his lower back was experience flare-ups. Further the Board notes a March 2018 treatment record which indicated the Veteran had a steroid epidural injection and was experiencing tenderness to palpitation on his back. Additionally, the Board notes an August 2018 treatment record where the Veteran's spine was reported to have full ROM without spasticity or contracture. Finally, the Board notes a February 2020 treatment record where the Veteran's spine is again reported to have full ROM without spasticity or contracture. The Veteran was afforded a May 2014 VA Back Conditions examination for his lumbar disability claim. The Veteran did not report flare-ups of his spine disability, but the examiner noted he was unable to complete repetitive use testing due to pain but stated the Veteran would experience less movement than normal on repetitive use. No ankylosis was reported, however, the examiner noted that the Veteran had IVDS with incapacitating episodes of at least one week but less than two weeks. Further, the Veteran's back was tender to palpitation and the Veteran was noted to experience muscle spasms and guarding which resulted in abnormal gait and spinal contour. The Veteran's ROM was as follows: forward flexion of the thoracolumbar spine to 30 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion of 20 degrees, and right lateral rotation to 20 degrees and left lateral rotation t0 25 degrees. The Veteran was next provided with a March 2015 VA Back Conditions examination regarding his claimed lumbar spine disability. The Veteran did not report flare-ups on the examination and the examiner indicated that there was no further loss of use with repetition. The Veteran's ROM was as follows: forward flexion of the thoracolumbar spine of 35 degrees, extension of 5 degrees, right lateral flexion to 10 degrees, left lateral flexion of 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation of 25 degrees. The examiner noted that the Veteran experienced pain on weightbearing and on all ROM measurements. No ankylosis of the spine, and no other neurologic abnormalities related to spine conditions were reported. The examiner noted that the Veteran had IVDS, but indicated he experienced no periods of prescribed bedrest in the past 12 months. Upon careful consideration of the evidence, the Board determines that a disability rating in excess of 40 percent for the Veteran's lumbar spine disability for the period beginning May 23, 2014, is not warranted. The 40 percent rating contemplates the Veteran's limitation of forward flexion to 30 or less with pain observed with movement. Additionally, the 40 percent rating contemplates the Veteran's muscle spasms and guarding he experienced which were severe enough to result in abnormal gait or abnormal spinal contour. A rating in excess of 40 percent would require unfavorable ankylosis of the Veteran's entire thoracolumbar spine or IVDS with incapacitating episodes having a total duration of at least 6 weeks. The Board notes that ankylosis was not reported during the period beginning May 23, 2014. And while ankylosis was reported prior to this period, as explained above, the Veteran only ever had partial ankylosis of his spine. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserted that his condition entitled him to a disability rating higher than 40 percent, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As noted above, the rating criteria requires that for a rating in excess of 40 percent the Veteran must have IVDS with incapacitating episodes at least 6 weeks in duration, or ankylosis of the entire thoracolumbar spine. However, the medical evidence shows that the Veteran did not have incapacitating episodes of at least 6 weeks in duration, nor did the Veteran have total thoracolumbar ankylosis. As such, the Board assigns greater weight to the medical evidence. Based on the foregoing, the totality of the evidence shows that the disability picture for the Veteran's lumbar disability warrants a 40 percent rating for this period on appeal. However, the preponderance of the evidence is against the assignment of a higher rating. 38 C.F.R. § 3.102. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. TDIULegal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Analysis As an initial matter, the Board observes that the Veteran had met the schedular criteria for TDIU from May 2014. For the relevant periods on appeal, as listed in the Veteran's most recent code sheet, the Veteran had a combined schedular rating of 70 percent disabling effective May 23, 2014, which increased to 90 percent disabling effective May 29, 2015, which then increased to 100 percent effective December 4, 2017. The Veteran's disabilities were as follows: major depressive disorder at 30 percent disabling increased to 70 percent disabling May 29, 2015; thoracolumbar spine scoliosis with degenerative disc disease at 20 percent disabling increased to 40 percent disabling on May 23, 2014; bilateral hearing loss at 40 percent disabling (effective December 4, 2017); bilateral lower extremity sciatic radiculopathy each at 10 percent disabling increased to 20 percent disabling on June 12, 2017; bilateral lower extremity femoral radiculopathy each at 20 percent disabling (effective June 12, 2017); tinnitus at 10 percent disabling; and several non-compensable disabilities. Based on the evidence, the Board finds that the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. The Veteran had not worked since his last employment as a truck driver in June 1974. See June 2017 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. His pervious employment, and virtually any other job, would have required the Veteran to be able to attend normal workday hours, as well as interact and communicate effectively with others. Additionally, the Veteran has four years of high school education and denied any additional education or training either before or after becoming disabled. The Veteran's medical records reflect significant psychiatric and physical limitations due to his service-connected disabilities. These included impaired memory, panic attacks, difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work or a work like setting, difficulty walking, inability to jog/climb, inability to stand/walk for long periods of time, inability to push/pull/lift/hold/squeeze, and severe painful motion of lumbar spine. Additionally, they reflect significant social and occupational limitations. Thus, his service-connected disabilities not only caused significant work impairment but also substantially impaired his capacity to gain work experience following service. In this case, the Board must determine the value of all evidence submitted, including medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran was afforded multiple VA examination opinions over the years. The VA examinations come from competent examiners who support their conclusions with evidence and sound medical reasoning. As such their medical opinions meet the first and second step of the inquiry. Throughout the record the VA examiners note that the Veteran would have multiple difficulties associated with employment due to service-connected disabilities. The Board has considered the Veteran's lay statements in support of his claim. He was competent to report symptoms such as pain, because it required only personal knowledge as it came to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record, notably the VA examination reports. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Affording the Veteran, the benefit of the doubt, the Board finds that his significant impairment due to service-connected disabilities rendered him incapable of obtaining or retaining substantially gainful employment, or that the evidence is at least in equipoise. As noted above, the Veteran's service-connected disabilities met the schedular requirement for TDIU during the relevant periods, and the Veteran provided competent evidence addressing his symptoms and limitations. Additionally, the evidence is at least in equipoise as to whether the Veteran was unemployable due to his service-connected disabilities. Thus, the Board resolves all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities had prevented him from obtaining and maintaining substantial employment, and therefore, a TDIU is warranted for the relevant period on appeal beginning May 23, 2014. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.