Citation Nr: 21040633 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-25 246 DATE: July 6, 2021 ORDER Entitlement to a rating higher than 20 percent prior to January 14, 2021, for service-connected lumbar strain is denied. Entitlement to a rating higher than 40 percent from January 14, 2021, for service-connected lumbar strain is denied. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 14, 2021, the Veteran's service-connected lumbar strain manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, with no indication of actual or functional ankylosis. 2. From January 14, 2021, the Veteran's service-connected lumbar strain has manifest by forward flexion less than 30 degrees, with no indication of actual or functional ankylosis. 3. Throughout the appeal period, the evidence is against finding that the Veteran has been precluded from engaging in substantially gainful employment due to his service-connected disabilities alone. CONCLUSIONS OF LAW 1. Prior to January 14, 2021, the criteria for a rating higher than 20 percent for service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. From January 14, 2021, the criteria for a rating higher than 40 percent for service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The lumbar strain issue was previously before the Board in January 2015 when it was remanded for the issuance of a Statement of the Case. It returned to the Board in July 2018 when it was remanded for further development. There, the Board also found that TDIU was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). These issues returned to the Board in January 2020, when they were again remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, by a January 2021 rating decision, the RO granted a 40 percent rating for the Veteran's lumbar strain, effective January 14, 2021. As this does not represent a full grant of the benefit sought on appeal, the Board will also address the propriety of this rating. The Board notes that the January 2020 remand instructed the RO to obtain and associate with the claims file the Veteran's employment records from the United States Postal Service (USPS), and additional private treatment records (PTRs). In March 2020, the RO sent the Veteran a letter asking that he identify and authorize for release any additional PTRs. Later in the same month, the RO sent the Veteran a letter requesting that he sign a VA Form 21-0845 Authorization to Disclose Information to a Third Party so that VA could request the USPS records from the United States Office of Personnel Management (OPM). The Veteran did not reply to either of these letters or submit the attached forms. The duty to assist a claimant is not a one-way street. In this case the Veteran did not cooperate by responding to the RO's request for authorization to request records to the full extent in the development of the claim, and the Board will proceed with adjudication of the matter. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). 1. Entitlement to an increased rating for service-connected lumbar strain. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent rating 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 disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension. Fixation of a spinal segment at zero degrees is considered favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet. App. Apr. 16, 2021). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. DC 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. DC 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under DC 5242. Regarding the use of the earlier and current criteria for evaluating the Veteran's chronic low back pain, the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Thus, the Board will evaluate this claim under both versions of the regulation and apply whichever is more favorable. January 2013 VA treatment records note moderate tenderness across the low back, with pain on forward flexion. Throughout the appeal period, the voluminous amount of VA treatment records shows that the Veteran experienced chronic low back pain. The Board does not dispute that the Veteran has experienced pain in his low back for the entire appeal period. For example, VA treatment records June 2017 indicate that the Veteran had chronic low back pain was that "treated by outside pain management with . . . hydromorphone, MS Contin, [and] Cyclobenzaprine. The Veteran requested a came from VA to assist with ambulation assistance. VA treatment records from March 2018 indicate that the Veteran presented for low back pain. There were no alleviating or aggravating factors. He described the pain as aching, dull, and tender. He reported triggers of pain included sitting, standing, and prolonged walking. His pain impacted his sleep, daily activities, physical activity, and mood. The Veteran underwent VA examinations in October 2013, March 2019, and January 2021. The October 2013 VA examination notes lumbar strain, with the Veteran asserting more sharp pain in the lower back. He reported that lying down, standing, or sitting for more than 1 to 1.5 hours caused flare-ups of stiffness and intensified pain. He performed low back exercises and would take pain medication. Initial range of motion (ROM) testing demonstrated forward flexion to 70 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each. No findings for extension were recorded. Repetitive-use testing with three repetitions showed no changes from the initial ROM testing, except that extension was demonstrated to 20 degrees. The examiner opined that it would be mere speculation to state if pain, weakness, fatigability, or incoordination could significantly limit the functional ability during flare-ups or when the joint was being used repeatedly over time as the Veteran was not in the stated condition at the time of examination. There was localized tenderness/pain on palpation, but no guarding or muscle spasm. The examiner noted no functional loss and/or functional impairment of the thoracolumbar spine, but that the Veteran reported retiring in 2000 for a back disability from the USPS. The Veteran did not have IVDS and there was no indication regarding the presence of ankylosis. The March 2019 VA examination notes lumbosacral strain, with the Veteran asserting that the pain had gotten worse. He described difficulty walking and standing for long periods of time and asserted flare-ups that cause sharp pain and stiffness in the back. On ROM testing, he demonstrated forward flexion to 60 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all to 20 degrees each, for a combined ROM of 160 degrees. The examiner noted that pain, but not range of motion, contributed to functional loss, that there was evidence of pain with weight-bearing, but that there was no objective evidence of localized tenderness or pain on palpation. The examiner noted objective evidence of pain on non-weight bearing, and that passive ROM was the same as active ROM testing. Repetitive use testing with at least three repetitions demonstrated forward flexion to 55 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all to 15 degrees each, for a combined ROM of 130 degrees, with pain and lack of endurance causing functional loss. The Veteran was not examined immediately after repetitive use over time, and the examiner opined that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time, with pain and lack of endurance causing functional loss. The examiner described in terms of ROM forward flexion to 50 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees each, for a combined ROM of 100 degrees. The Veteran was not examined during a flare-up, and the examiner opined that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups, with pain and lack of endurance causing functional loss. The examiner described, in terms of ROM, forward flexion to 45 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees each, for a combined ROM of 95 degrees. The examiner found no guarding or muscle spasm, and noted additional factors contributing to disability including: 1) less movement than normal due to ankylosis, limitation or block, adhesions, etc.; 2) interference with standing; 3) and pain with prolonged usage. The examiner noted no evidence of ankylosis or IVDS. Regarding functional impact and the condition's impact on the Veteran's ability to work, the examiner noted that the lumbar strain limited walking and standing for a time period over one hour. June 2019 private treatment records (PTRs) note that the Veteran complained of back pain aggravated by prolonged walking, standing, and sitting. The examiner suggested the Veteran avoid prolonged standing or walking. This record, however, does not provide any additional insight into the severity of the condition and does not contain any ROM measurements. The January 2021 VA examination notes lumbosacral strain, and that the condition had progressed and worsened. The Veteran did not report any flare-ups, but reported functional loss including being unable to lift. Initial ROM testing demonstrated forward flexion to 45 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 20 degrees each, for a combined ROM of 120 degrees. The examiner noted that ROM contributes to functional loss in that the Veteran is unable to work at ground level while standing and has pain on all ROMs. The examiner found objective evidence of localized tenderness/pain on palpation, and evidence of pain with weight-bearing, but no objective evidence of pain on non-weight bearing. The examiner opined that passive ROM testing could not be performed or was not medically appropriate. The Veteran was able to perform repetitive use-testing with at least three repetitions with no additional loss of function or ROM. He was not examined immediately after repetitive use over time, and the examiner opined that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time, with pain, fatigue, weakness, and lack of endurance causing functional loss. The examiner described, in terms of ROM, forward flexion to 15 degrees, extension to 2 degrees, and right and left lateral flexion and right and left lateral rotation all to 5 degrees each, for a combined ROM of 37 degrees. The Veteran was not examined during a flare-up, and the examiner opined that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups, as the Veteran did not report flare-ups during this examination. The examiner found no guarding or muscle spasm, and that there were no additional factors contributing to disability. The examiner noted no evidence of ankylosis or IVDS. Regarding functional impact and the condition's impact on the Veteran's ability to work, the examiner noted that the lumbar strain caused the Veteran to be unable to lift, and unable to work as a police officer, paramedic, fire fighter, or any other occupation requiring full ROM and use of the lower back. However, the Veteran is able to perform sedentary work as he is able to sit comfortably and was able to transition and change position without issue during examination. Prior to January 14, 2021 Upon review of the evidence of record, the Board finds that a rating higher than 20 percent is not warranted for the period prior to January 14, 2021. In this case, absent a showing of forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, as required for a 40 percent rating, a higher evaluation is not supported. On the July 2015 VA Form 9, the Veteran asserted that the January 2013 VA treatment record shows flexion at "10 percent. However, this is not what that record shows. It merely showed pain at approximately 10 degrees (not percent), and it does not show that ROM testing demonstrated forward flexion to only 10 degrees. While the examiner during the October 2013 VA examination declined to describe in terms of ROM the impact of repeated use over time or flare-ups, thus only providing forward flexion to 70 degrees on initial ROM, the March 2019 VA examination demonstrated forward flexion at worst to 45 degrees during a flare-up. Further, no IVDS or incapacitating episodes have been demonstrated at any point during the appeal period. Moreover, the Veteran demonstrated range of motion in his low back prior to January 14, 2021 and has not even as much as alleged he experienced functional ankylosis. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). The Veteran has asserted that his symptoms are more severe than what is represented by a 20 percent rating for his lumbar spine. The Board notes that he is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, as noted above, the Board does not dispute that the Veteran has experienced chronic pain in his low back. However, the Board finds that the totality of the evidence indicates the current 20 percent rating, prior to January 14, 202, appropriately compensates his symptoms. The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his disability. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluation assigned and do not more nearly approximate the criteria for a higher evaluation prior to January 14, 2021. As such, the Board finds that a rating higher than 20 percent is not warranted under the General Rating Formula for the period prior to January 14, 2021. See 38 C.F.R. § 4.71a, DCs 5235-5243. From January 14, 2021 The Board finds that the Veteran is adequately compensated and already in receipt of a 40 percent schedular rating for the lumbar strain for the period from January 14, 2021. The only basis for a higher rating of 50 percent under the General Rating Formula is if there is evidence of ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable); compare Chavis, supra. Here, for the entire period on appeal, the Veteran's lumbar strain has not manifested by favorable or unfavorable ankylosis at any point of the appeal period. As demonstrated above, ankylosis was not indicated during the October 2013 examination, and was specifically denied in the March 2019 and January 2021 VA examinations. Thus, the Board finds that higher ratings based on ankylosis are not supported or warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, DC 5237. Additionally, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206. In this case, although the VA examiners above found that the Veteran's lumbar strain resulted in less movement than normal, pain, fatigue, weakness, and lack of endurance, as noted above the March 2019 examiner also determined that even during a flare-up, forward flexion would be demonstrated to at worst 45 degrees, and in the recent January 2021 VA examination the Veteran denied flare-ups. Furthermore, despite the Veteran's complaints, pain did not result in ankylosis of the lumbar spine at any time during the period on appeal. See Chavis, No. 18-2928, slip op. at 11. In this regard, VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned ratings. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted during the entire appeal period for the Veteran's lumbar strain even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Consideration was given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding any IVDS requiring physician prescribed bed rest for a duration that meets the criteria for a higher rating at any point during the entire appeal period. 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, all potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). January 2013 VA treatment records show positive straight leg raise testing, intact motor, and hypoactive deep tendon reflexes, but the examiner made no findings of radiculopathy. During the October 2013 VA and March 2019 examinations, neurological testing produced normal results, and the examiners found no evidence of radiculopathy. The January 2021 VA examiner noted that the Veteran was unable to perform straight leg raise testing, but that all other neurological testing produced normal results, and the examiner found no evidence of radiculopathy. Throughout the entire appeal period, the Veteran has not alleged, and the evidence does not show, that there is bladder impairment or bowel impairment as a result of the lumbar strain, and on examination, there was no finding of radiculopathy of the lower extremities. Thus, there is no basis for additional separate neurological evaluations. Based on these findings, the Board concludes that ratings higher than 20 percent prior to January 14, 2021, and higher than 40 percent thereafter are not warranted, under either the rating criteria prior to, or from February 7, 2021. In denying higher ratings, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU The Veteran has asserted that he is unable to work due to his service-connected disabilities. A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is in effect for the following disabilities: 1) sleep apnea; 2) lumbar strain; 3) acne vulgaris; 4) left knee patellofemoral joint pain, and chondromalacia patellae (left knee disability); 5) tinnitus; and 6) bilateral foot condition. For the entire appeal period, the Veteran's combined disability evaluation has been 80 percent. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and the combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). With that said, however, the Board finds that the preponderance of the evidence is against the finding that the Veteran is precluded from engaging in substantially gainful employment solely as a result of the service-connected disabilities. Meaning, the Veteran's service-connected disabilities, alone or the combined effects of all service-connected disabilities, do not render him unemployable. The Veteran's DD-214 indicates that his Military Occupational Specialty (MOS) was field artillery crewmen. In a resume submitted in September 2018, the Veteran reported that he completed high school. July 1977 records also note that the Veteran was a student in community college. June 2019 VA Vocational Rehabilitation records note that he completed a bachelor's degree program in psychology, and the aforementioned resume indicates that he graduated in 2018. October 2012 VA Vocational Rehabilitation records indicate that the Veteran worked as a letter carrier for USPS from 1980 to 2000 and went out on disability for issues related to his back, shoulder, and knee, and receives disability retirement monthly from the USPS. As noted in the introduction above, the Veteran failed to respond to the request to authorize the release of employment records with the USPS from OPM. A January 2002 report of contact indicates that the Veteran was incarcerated from November 2000 to May 2001 for a felony. The October 2012 VA Vocational Rehabilitation records note that he was arrested in December 1999 for conspiracy to purchase illegal drugs with an intent to sell. These records also indicate that he worked as a mortgage loan officer beginning in 2002 until the business closed three years later, and that the Veteran had not worked since. Regarding the "noneconomic" factors discussed in Ray, the Board notes that the evidence of record show that the Veteran has experience in sedentary employment. The counselor from the October 2012 record noted that the Veteran's service-connected low back disability resulted in chronic pain which increases with too much sitting and too much standing, and that he should limit bending, lifting, and repetitive motions. The counselor stated that the Veteran takes oxycontin daily, and that his level of concentration and focus on tasks may be decreased as a side effect. The counselor noted that the tinnitus is triggered by loud noises or sirens, and while it is not distracting, the Veteran should avoid working in areas where there are frequent loud noises such as in warehouses or construction sites so as not to aggravate the condition. Regarding the left knee condition, the counselor reported that the Veteran has difficulty with prolonged walking, as well as climbing, and has limited ability to lift, kneel, crawl, or squat. The counselor opined that as the Veteran needs to avoid sun exposure due to the acne vulgaris, he should avoid work outside. As for the sleep apnea, the counselor found that there appears to be no vocational impairment for this condition. Finally, a for non-service-connected right shoulder condition, the counselor noted that the Veteran should limit lifting, carrying, and reaching. The counselor opined that the low back disability, tinnitus, left knee disability, and acne vulgaris impair the Veteran's ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests, and that the Veteran is not likely to be able to perform work beyond sedentary to light physical work. As a result, the counselor found that the Veteran had an employment handicap due to chronic pain, long or substantial periods of unemployment, lack of education or training for suitable employment, and a criminal record. Following this determination, the Veteran enrolled in college in November 2012 to seek a degree in psychology, with regular case management appointments with VA Vocational Rehabilitation services. In December 2012, the Veteran requested funding from VA to obtain a desktop computer, asserting that it would be more comfortable for his studies than carrying a laptop would be. This request was approved in December 2012. During the October 2013 VA examination for the Veteran's lumbar strain, the examiner noted no functional loss and/or functional impairment of the thoracolumbar spine, but that the Veteran reported retiring in 2000 for a back disability from the USPS. In a December 2014 statement, the Veteran asserted that he had to leave his job with USPS due to bad feet and sleep apnea. As noted above, the Veteran graduated in 2018, and in September 2018 through May 2019, he began submitting reports of places where he applied for employment. In a January 2019 email, the Veteran reported that he obtained a job overseeing production of parts at a toy manufacturer, but he was unable to complete training as he could not stand or sit for long periods. During the March 2019 VA examination for the Veteran's lumbar strain, the examiner noted there is functional impact relating to the Veteran's employability in that the lumbar strain limits the Veteran's walking and standing for a time period of over one hour. In a May 2019 email, the Veteran asserted that because he had been very sick lately, and had fallen and hurt his back, he was unable to do much at all, and would follow up soon with a doctor's report. June 2019 PTRs note that a private physician found that the Veteran's back, left knee, and feet pain are aggravated by prolonged walking, standing, and sitting, and that the Veteran should avoid prolonged standing and walking. In a June 2019 email, the Veteran asserted that due to his disabilities, he is unable to work. He requested to withdraw from the VA Vocational Rehabilitation program. In a June 2019 VA Vocational Rehabilitation counseling report, a counselor opined that the Veteran had attained the maximum rehabilitation gain, having completed a bachelor's degree in psychology, and that he is qualified and capable of obtaining employment in a suitable occupation. The counselor noted the December 2012 plan developed to obtain and maintain employment in the occupational goal of a human services case worker or related field. The counselor opined that despite the Veteran's assertion that he is unable to work, there is no medical evidence to substantiate this. The counselor explained that while the Veteran's disabilities have increased, the limitations are similar to that which he experienced in the past. The counselor noted new diagnoses of diabetes and prostate cancer that are not service-connected. The counselor opined that the Veteran was able to fully participate in the training program and was actively searching for gainful employment until recently without any report that his health would interfere with employment. Ultimately, the counselor found that the Veteran now qualifies for various positions in the human services case worker or related field. During the January 2021 VA examination for the lumbar strain, regarding functional impact on the Veteran's ability to work, the examiner noted that the lumbar strain caused the Veteran to be unable to lift, and unable to work as a police officer, paramedic, fire fighter, or any other occupation requiring full ROM and use of the lower back. However, the examiner did opine that the Veteran is able to do sedentary work and is able to sit comfortably and was able to transition and change position during the examination. A review of the evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of the service-connected disabilities or based on a single disability. The Board finds VA examinations and findings weigh against the Veteran's claim and are found to have great probative value. While the medical professionals from the March 2019 and January 2021 VA examinations, and the June 2019 PTRs noted that the service-connected lumbar strain contributes to physical limitations on his employability, the October 2013 VA examiner found no functional impact, and the January 2021 examiner specifically opined that the Veteran is able to perform sedentary work. The Board does acknowledge that during the appeal period there have been no VA examinations or other medical records of note to address the severity impact of the Veteran's other service-connected disabilities on his employability. The June 2019 PTR did note that the Veteran should avoid prolonged standing and walking, however, no further detail was provided. Although the October 2012 VA Vocational Rehabilitation counselor did address these other disabilities and their impact, and determined the Veteran had an employment handicap, the counselor opined that it was due not just to chronic pain, but as well as long or substantial periods of unemployment, lack of education or training for suitable employment, and the criminal record. Ultimately, the counselor found the Veteran suitable for vocational rehabilitation, and that the Veteran was capable of work in a sedentary position. The Veteran requested and received funding for a desktop computer in pursuit of the degree program, suggesting that the Veteran is indeed capable of working in a sedentary position. The Veteran successfully obtained a bachelor's degree in psychology in 2018. He ultimately only submitted evidence of attempts at applying for jobs for approximately eight months before requesting to withdraw from the vocational rehabilitation program. The June 2019 counselor determined that the Veteran had attainted maximum rehabilitation gain, and that he was qualified for various positions as a human services case worker or related field. Otherwise, aside from the December 2014 statement that the Veteran needed to retire from USPS due to the foot disability and sleep apnea, and the assertions other numerous assertions that he retired due to the back strain, the Veteran and their representative have made no specific assertions regarding how the other service-connected disabilities have affected his employability. And again, as noted above, when VA requested authorization from the Veteran to obtain his employment records with USPS from OPM, the Veteran failed to reply or submit the corresponding form to obtain them. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected disabilities. Additionally, he is credible in his reports during clinical evaluations of symptoms and their effect on his activities. Layno v. Brown, 6 Vet. App. 465 (1994). But as a lay person, he is not competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Furthermore, the question of employability is ultimately one for the finder of fact. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this instance, the Board has afforded much probative weight to the Veteran's VA treatment records, private treatment records, vocational rehabilitation counselors, and VA examination reports in determining the severity of his service-connected disabilities and their functional impact on employability. The Board finds the Veteran's assertions regarding unemployability, standing alone, to be of little probative value. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Ahigher rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran is rendered unemployable due to his service-connected disabilities. Even though the Veteran met the applicable percentage standards, the Board nevertheless finds that the criteria under 38 C.F.R. § 4.16(a) have not been met and TDIU is not warranted. Accordingly, the claim must be denied. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.