Citation Nr: 21032527 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-28 683 DATE: May 27, 2021 ORDER Entitlement to an increased disability evaluation for lumbar spine degenerative disc disease and degenerative joint disease, currently rated as 20 percent disabling, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the rating period from September 18, 2006 to March 2, 2021 is granted. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's lumbar spine degenerative disc disease and degenerative joint disease is manifested by pain, with muscle spasm. Forward flexion is limited to no worse than 60 degrees, without ankylosis. 2. For the rating period from September 18, 2006 to March 2, 2021, the Veteran's service-connected disabilities render her unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 3. The criteria for a disability evaluation in excess of 20 percent for lumbar spine degenerative disc disease and degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5235 to 5243 (2020). 4. The criteria for TDIU are met for the rating period from September 18, 2006 to March 2, 2021. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1982 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which, in pertinent part, denied the Veteran's claim for an increased disability evaluation for her service-connected lumbar spine degenerative disc disease and degenerative joint disease. In a December 2017 decision, the Board granted an increased, 20 percent disability evaluation for her service-connected lumbar spine disorder. The Veteran appealed the denial of a disability rating in excess of 20 percent for her service-connected lumbar spine disorder to the Court of Appeals for Veterans Claims (Court) In September 2018, the parties filed a Joint Motion for Partial Remand (Joint Motion or JMPR) which requested that the Board's decision, to the extent that a disability evaluation in excess of 20 percent for the Veteran's service-connected lumbar spine disorder was denied, be vacated and remanded. The Joint Motion also found that the Board erred in failing to adjudicate a claim for TDIU, which was "reasonably raised" by the record as being part of her claim for an increased disability evaluation. A September 2018 Court Order granted the motion and remanded the claims for readjudication consistent with the terms of the Joint Motion. Consequently, in March 2019 and September 2020, the Board remanded this appeal for further development, including scheduling the Veteran for an additional VA examination to evaluate the severity of her service-connected lumbar spine disorder. A supplemental statement of the case was most recently issued in March 2021. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that a December 2017 rating decision effectuated the Board decision as to the award of a 20 percent disability rating for lumbar spine degenerative disc disease and degenerative joint disease; an effective date of September 18, 2006 was assigned. The Board observes that the March 2019 and September 2020 Board remands characterized the issues as entitlement to a disability rating in excess of 10 percent for the rating period prior to September 18, 2006 and a disability rating in excess of 20 percent thereafter, and entitlement to TDIU. However, the Board observes that the Veteran does not dispute the effective date of the award of 20 percent for her service-connected lumbar spine disorder, which is a separately appealable issue, and as such, the disability rating assigned for the rating period prior to September 18, 2006 is not currently before the Board. As such, the Board finds that the Veteran effectively conceded that the rating assigned for her service-connected lumbar spine disorder during the rating period prior to September 18, 2006 is not at issue. The Board also acknowledges that a March 2021 rating decision granted the Veteran's claim of entitlement to TDIU, effective March 3, 2021. However, because the Veteran's claim of TDIU is considered part and parcel of her claim for an increased rating, her claim of TDIU, for the rating period from September 18, 2006 to March 2, 2021 remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has recharacterized the issues as listed above. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242, 5243, and 5257. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See 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, Diagnostic Codes 5003, 5010, 6242, 5243). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for lumbar spine degenerative disc disease and degenerative joint disease, currently rated as 20 percent disabling. The Veteran is currently assigned a 20 percent disability rating for her service-connected lumbar spine degenerative disc disease and degenerative joint disease pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5010 5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. As previously discuss, the amended Diagnostic Codes, effective February 7, 2021, revised Diagnostic Code 5010 to remove the instruction to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003, and instructed that traumatic arthritis be rated as "limitation of motion, dislocation, or other specified instability under the affected joint." The effect of this revision is to eliminate the 10 percent disability evaluation available under Diagnostic Code 5003 for noncompensable limitation of motion. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). The Board observes that the change to Diagnostic Code 5010 has no practical effect on the Veteran's claim for an increased disability rating, as she is effectively rated for her service-connected lumbar spine disorder under the General Rating Formula for Rating Diseases and Injuries of the Spine. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned for 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 evaluation is to be 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that she is entitled to a higher rating and that her symptoms have been consistent throughout the appeal period. After a review of all the evidence, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation for her service-connected lumbar spine degenerative disc disease and degenerative joint disease. At the March 2007 and October 2008 VA examination, the Veteran had normal range of motion in all directions; however, the Veteran had pain on motion. There was no evidence of muscle spasm, guarding, or atrophy. Strength and reflex testing were normal, and there was no evidence of ankylosis. The VA examination reports indicated that there was no evidence of functional loss due to pain on motion. Both examination reports reflected that the Veteran did not have intervertebral disc syndrome or incapacitating episodes. At the March 2011 VA examination, the Veteran had forward flexion to 80 degrees, with normal range of motion in extension, lateral rotation, and lateral flexion. There was no muscle spasm, guarding, atrophy, or tenderness on palpation; there was also no evidence of ankylosis. The Veteran reported pain on motion that decreased mobility; however, there was no evidence of functional loss due to pain on motion. The April 2017 VA examination found that the Veteran had forward flexion limited to 80 degrees with pain on active and passive motion and with weight-bearing, which resulted in additional functional loss due to pain, which the Veteran described as limitations on her ability to stand or sit for more than 30 minutes, walk for more than 15 minutes, or lift, push, and pull. The VA examiner found that the Veteran's manifestations as observed on examination were medically consistent with the Veteran's statements describing functional loss due to pain during flare-ups or after repetitive use but explained that any additional range of motion loss could not be assessed because the Veteran was not being evaluated after repetitive use over time or during a flare up. There was no muscle spasm, guarding, or atrophy; muscle strength and reflexes were normal. There was no evidence of ankylosis. The Veteran reported having experienced two flare-ups, one in 2014 and one in 2015. The first flare-up was treated with a shot in the back at the emergency room. The shot helped the pain and the Veteran was sent home. The second flare-up was also alleviated with an epidural shot. The flare-ups each lasted 24 hours The November 2019 VA examination report reflects that the Veteran had forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees. Upon repetitive motion, she had pain on motion with decreased range of motion; the VA examiner indicated that the Veteran did not have functional loss due to pain on motion and that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time, as repetitive use testing was not performed. The VA examiner noted that the Veteran's range of motion which impacts her ability to do prolonged sitting, standing, and walking. The VA examiner indicated that the Veteran did not have pain on weight-bearing, but there was tenderness to palpation. The Veteran did not have muscle spasm or guarding of the spine; there was also no evidence of muscle atrophy or ankylosis. The VA examiner indicated that the Veteran does not have intervertebral disc syndrome. At the March 2021 VA examination, the Veteran had forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Upon repetitive motion, she had pain on motion with decreased range of motion; the VA examiner indicated that the Veteran had forward flexion to 75 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. Further testing reduced forward flexion to 65 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The VA examiner noted that the Veteran's pain on motion impacted her ability to do prolonged sitting, standing, walking. The VA examiner indicated that the Veteran's functional impairment was due to pain, weakness, fatigue, and lack of endurance. The VA examiner observed pain on motion and tenderness to palpation, as well as muscle spasm and guarding not resulting in abnormal gait or abnormal spine contour; there was no evidence of muscle atrophy or ankylosis. The VA examiner indicated that the Veteran does not have intervertebral disc syndrome and noted that the Veteran reported one incapacitating episode in 2020, when her back went out while shopping; the Veteran reported that she received a shot in her back at the emergency room. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain and reduced range of motion. A September 2009 private medical records indicate the Veteran sought emergency treatment for a flare caused by cleaning that resulted in increased back pain and difficulty walking with tenderness and limited range of motion due to pain; a related physical therapy record reported forward flexion was limited to 60 degrees. A July 2014 physical therapy record noted that the Veteran had normal range of motion. The lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that she is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine during the rating period on appeal. Additionally, the Veteran does not experience incontinence or bowel complaints as a result of her lumbar spine degenerative disc disease and degenerative joint disease. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that her pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up. The Board observes that the Veteran's the projected limitation of motion was based on the Veteran's report of symptomatology and reports of functional loss; the March 2021 VA examiner found that range of motion is estimated to no worse than 65 degrees forward flexion upon testing to estimate functional loss during a flare-up. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that the Veteran reports flare-ups requiring emergency room treatment approximately once a year, the Board finds that the Veteran's flare-ups, especially in light of their frequency, do not show that the evidence more nearly approximates a disability picture with forward flexion of the spine limited to 30 degrees or less. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Veteran does not have intervertebral disc syndrome which is productive of incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. Review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest as a result of her lumbar spine degenerative disc disease and degenerative joint disease. Furthermore, there was no evidence of a diagnosis of intervertebral disc syndrome. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran's VA examination reports reflect that the Veteran does not experience any lower extremity neurological deficits, it is not for consideration here. As such, the Board finds that the evidence of record reveals manifestations consistent with the currently assigned 20 percent evaluation for the entire rating period on appeal for lumbar spine degenerative disc disease and degenerative joint disease. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). TDIU 2. Entitlement to TDIU for the rating period prior to March 3, 2021. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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 purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled 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). "Marginal employment shall not be considered substantially gainful employment.' 38 C.F.R. § 4.16(a) (2019). The Veteran seeks entitlement to TDIU for the rating period prior to March 3, 2021 based on her service-connected disabilities, namely her service-connected lumbar spine disorder. From September 18, 2006, the Veteran is in receipt of a 20 percent disability evaluation for her lumbar spine degenerative disc disease and degenerative joint disease; a 20 percent disability evaluation, per shoulder, for right and left shoulder strain; a 10 percent disability evaluation for post-operative hemorrhoids; a 10 percent disability evaluation, per knee, for right and left retropatellar pain syndrome; a 10 percent disability evaluation for left elbow epicondylitis; a 10 percent disability evaluation for right ear hearing loss; a noncompensable disability evaluation for right forearm lipoma; and a noncompensable disability evaluation for fibrocystic breast disease for a combined disability rating of 70 percent; and from August 9, 2010, when her rating for hemorrhoids was increased to 20 percent, she had a combined disability evaluation of 80 percent. See 38 C.F.R. § 4.25. Given that the 20 percent ratings for both the right and left shoulder combine to a single 40 percent rating, and that disabilities of both upper extremities will be considered one disability under 38 C.F.R. § 4.16(a)(1), the Veteran meets the schedular criteria for TDIU under section 4.16(a). VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). At the most recent, March 2021 VA examination, the VA examiner found that the Veteran's lumbar spine degenerative disc and degenerative joint disease progressively worsened with back pain, and cause difficulty with walking, prolonged standing, and climbing stairs. The VA examiner noted that the Veteran has increasingly needed treatments for her back pain, including MRIs, physical therapy, steroid injections, and pain management to control her back pain. The VA examiner found that, due to the progression of the Veteran's lumbar spine degenerative disc and degenerative joint disease, the Veteran would have difficulty focus on the task on hand, as the medication prescribed for treatment of her pain causes cognitive effects, and due to the distracting nature of her back pain. Likewise, the Veteran cannot sit for prolonged periods, has difficulty changing positions from sitting to standing, and is too unstable to climb ladders. The VA examiner noted that the Veteran reported that she has fallen due to loss of range of motion of her back, which presents a safety issue in a work environment. The VA examiner concluded that the Veteran is at least as likely as not unable to secure substantially gainful occupation due to the lumbar spine and other service-connected disabilities. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities render the Veteran unable to obtain or sustain substantially gainful employment for the rating period on appeal. The Board observes that the Veteran's back symptomatology and manifestations have been relatively consistent throughout the rating period on appeal; the Veteran's reports of medication for pain management and difficulty with prolonged standing, sitting, or walking, as well as with lifting, pushing, and pulling have been consistent throughout the rating period. The Board observes that the Veteran's service-connected lumbar spine degenerative disc disease and degenerative joint disease is productive of symptomatology that contributes to her difficulty performing occupational tasks. VA treatment records and VA examination reports indicate that the Veteran experiences difficulty with both physical tasks and sedentary work due to her service-connected lumbar spine degenerative disc disease and degenerative joint disease. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran's contentions that she was unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. As a result, the Veteran's service-connected disabilities prevented her from obtaining and maintaining substantial gainful employment during the rating period from September 18, 2006 to March 2, 2021. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.