Citation Nr: 21042671 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-06 713A DATE: July 13, 2021 ORDER Entitlement to a rating of 30 percent for frostbite of the right hand is granted from the earlier date of March 26, 2009. Entitlement to a rating in excess of 30 percent for frostbite of the right hand is denied. Entitlement to a rating in excess of 10 percent for spondylosis with degenerative changes T5-6 prior to March 26, 2010 is denied. Entitlement to a rating in excess of 20 percent for spondylosis with degenerative changes T5-6 from March 26, 2010 is denied. Entitlement to a total disability rating for compensation based on individual employability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From March 26, 2009, the Veteran's frostbite of the right hand manifested by arthralgia or other pain, numbness, cold sensitivity, locally impaired sensation, nail abnormalities, and included an x-ray abnormality of osteoporosis. 2. The Veteran is in receipt of the maximum schedular rating assignable for residuals, frostbite, right hand. 3. For the relevant rating period prior to March 26, 2010, the evidence of record shows that the Veteran's service-connected spondylosis with degenerative changes T5-6 disability manifested in pain and limitation of motion with forward flexion of greater than 60 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees. 4. For the relevant rating period from to March 26, 2010, the evidence of record shows that the Veteran's service-connected spondylosis with degenerative changes T5-6 disability manifested in pain and limitation of motion with forward flexion of greater than 30 degrees and a combined range of motion of the thoracolumbar spine not greater than 120 degrees, and with no IVDS or ankylosis. 5. Resolving the benefit of the doubt in the Veteran's favor, the Veteran's service-connected disabilities prevent her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 30 percent is granted from March 26, 2009 for frostbite of the right hand have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.104, Diagnostic Code 7122. 2. The criteria for entitlement to a rating in excess of 30 percent from May 1, 2013 for frostbite of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.104, Diagnostic Code 7122. 3. The criteria for entitlement to a rating in excess of 10 percent for spondylosis with degenerative changes T5-6 prior to March 26, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5242. 4. The criteria for entitlement to a rating in excess of 20 percent for spondylosis with degenerative changes T5-6 from March 26, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5242. 5. The criteria for entitlement to a total disability rating for compensation based on individual employability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1992 to May 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor her representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a rating of 30 percent is granted from March 26, 2009 for frostbite of the right hand 2. Entitlement to a rating in excess of 30 percent from May 1, 2013 for frostbite of the right hand The Veteran seeks a higher rating for her right-hand frostbite disability. The Veteran contends that her condition is worse in the winter, specifically her flare-ups. The Veteran's representative contends that the date of the examination should not be used in determining an effective date, but instead the date of the claim. The Veteran filed her claim for disability for her right-hand frostbite disability on March 26, 2010. Therefore, the relevant rating period is from March 26, 2009, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). For an increased rating to be granted during the one-year period prior to receipt of the claim, it must be factually ascertainable that an increase in disability occurred. See id. The Veteran's right-hand frostbite disability is currently rated at 30 percent disabling, effective May 1, 2013. The Veteran's service-connected cold injuries of the bilateral feet are rated under 38 C.F.R. § 4.104, Diagnostic Code 7122, which pertains to residuals of cold injuries. Under Diagnostic Code 7122, a 20 percent rating is warranted when there is arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A maximum 30 percent rating is applied when there is arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). In April 2009, the Veteran was afforded a VA examination for her right-hand frostbite disability. The Veteran reported that her wrists, and hands are numb even if she wears her carpal tunnel braces at night. The Veteran stated that she has hand pain and must use two hands to hold objects to ensure that she does not drop the object. The examiner indicated that the Veteran does not have hyperhidroses or tissue loss. However, the Veteran's symptoms include nail abnormalities including fungus infections, locally impaired sensations, and color changes due to Raynaud's phenomenon, occurring less than once per week. The Veteran also has severe cold sensitivity, tingling, weakness, swelling, skin thickening, and cramps. The examiner stated that the Veteran lost 4 weeks of work in the last year due to her condition. The Veteran's manual dexterity is reduced, and she has moderate difficulty doing chores, shopping, exercising, recreation, travel, and feeding. She has mild difficulty participating in sports, bathing, dressing, toileting, and grooming. Later in April 2009, the Veteran was afforded a VA examination for frostbite on her feet. The examination included an examination of the Veteran's right-hand frostbite disability. The examiner noted that the Veteran's symptoms included, color changes due to Raynaud's phenomenon (occurs less than once per week), paresthesia, numbness, hyperhidrosis, severe pain, swelling, recurrent fungal infections, numbness, and the Veteran's hands crack and take a long time to heal. The Veteran wears vinyl gloves at night with creams because of severe cracking and drying. She also has stiffness of joints in her right hand. The Veteran reported that she was working with a sewing machine and was in contact with the small light bulb and did not realize it was hot, she could not feel it, and she burned her finger. The Board notes that some of the skin findings contradict other findings within the examination, specifically the coloring of the skin. In May 2010, the Veteran submitted a statement in support of her claim. She stated that she has difficulty gripping items with her hand, and that she wears braces at night on her hands and feet. During the day she wears wrist supports. In May 2013, the Veteran was afforded a VA examination for her right-hand frostbite disability. The examiner noted that the Veteran's symptoms included, arthralgia or other pain; numbness; and locally impaired sensation. The examiner noted that Raynaud's phenomenon was not applicable. The examiner also noted that in 2013, the Veteran had an x-ray for her right hand that revealed osteoarthritis. The Veteran reported using braces regularly. The functional impact includes work with restrictions to avoid prolonged walking, and prolonged use of the hands. In October 2015, the Veteran testified at a Board hearing. The Veteran reported having symptoms including, arthralgia, color changes, paresthesia, pain, weakness, hyperhidrosis, lack of motion (no grip), and arthritis. The Veteran testified that she wears special gloves and a thumb brace because the joint is so swollen. She also used the gloves for warmth and support. In August 2016, the Veteran was afforded a VA examination for her right-hand frostbite disability. The examiner indicated the Veteran had symptoms including cold sensitivity, numbness, and osteoarthritis. The Veteran reported using braces regularly. The examiner indicated that the Veteran's cold injury residuals do not impact her ability to work. In August 2016, the Veteran was afforded a VA examination to test her range of motion in her right hand. While the Veteran had arthritis, the Veteran had a normal range of motion; no gap between the pad of the thumb and the fingers; no gap between the finger and proximal transverse crease of the hand on maximal finger flexion, and no ankylosis. The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss. The examiner noted that during flare-ups, pain, weakness, fatigability, or incoordination may significantly limit the Veteran's functional ability, but declined to provide estimates, as the Veteran has a normal range of motion. In August 2016, VA secured a medical opinion to determine if the Veteran's arthritis is related to her right-hand frostbite disability. The examiner opined that it was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that the imaging findings were not typical of a frostbite injury because the thumb is often spared because the Veteran may shield the thumb with the palm. The examiner stated that he did not see any diagnosis of frostbite within the STR's while the Veteran was active in the military. The examiner attributes the Veteran's condition to deconditioning. The Board notes that the Veteran's service treatment records reveal that the Veteran was seen for cold weather hand injuries during service, and thus do not find that this medical opinion has probative value. The Board has considered the medical and lay evidence, and the Board finds that the Veteran is entitled to a 30 percent rating effective March 26, 2009, a year prior to the claim. While some of the symptoms within the VA examinations conflict with one another, the Board resolves reasonable doubt in the Veteran's favor. The Veteran is competent to report symptoms, because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also notes that the August 2016 VA examiner did not perform a thorough review of the Veteran's record, and thus was not given probative weight. The Veteran's symptoms have included arthralgia or other pain, numbness, or cold sensitivity plus: nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, and osteoporosis. Accordingly, the Veteran symptoms included at least two of the required symptoms, and thus the Veteran is entitled to a 30 percent rating. The Board also considered other relevant Diagnostic Codes such as 7117, but the Veteran's characteristic attacks of Raynaud's phenomenon did not occur weekly, and it was also used to support an evaluation under Diagnostic Code 7122. The Board also considered the Veteran's contention that her symptoms are worse during the winter and examined the record for any indication of any symptoms such as range of motion that may have occurred more in the winter. However, there is no evidence in the record that the Veteran suffers from additional symptoms that would warrant a separate rating or are not contemplated in Diagnostic Code 7122. The RO also gave the Veteran an opportunity to submit additional evidence from any private treatment provider, but she did not respond. The Board therefore finds that the criteria for the 30 percent rating for the Veteran's residuals of frost bite of the right hand were met from March 26, 2009, which is a year prior to the Veteran's claim. To the extent the Veteran seeks higher ratings or an earlier date for the increase in ratings, the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a rating in excess of 10 percent for spondylosis with degenerative changes T5-6 prior to March 26, 2010 4. Entitlement to a rating in excess of 20 percent for spondylosis with degenerative changes T5-6 from March 26, 2010 The Veteran seeks a higher rating for her spondylosis with degenerative changes T5-6 (back disability). The Veteran filed her claim for her back disability on March 26, 2010. Therefore, the relevant rating period is from March 26, 2009, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). For an increased rating to be granted during the one-year period prior to receipt of the claim, it must be factually ascertainable that an increase in disability occurred. See id. The Veteran's spondylosis with degenerative changes T5-6 (back disability) is currently rated at 10 percent prior to March 26, 2010, and at 20 percent from that date, under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board finds that the more appropriate Diagnostic Code is 5242 because the Veteran has not suffered from intervertebral disc syndrome (IVDS). Cf. Butts v. Brown, 5 Vet. App. 532 (1993) (stating that the Board may choose the diagnostic code to apply provided the choice is supported by reasons and bases, as well as the evidence); see also 38 C.F.R. § 4.20. Diagnostic Code 5242 directs that degenerative arthritis of the spine be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 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 is assigned for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Board notes that the November 2007 rating decision awarded the Veteran a compensable rating of 10 percent, for her back condition. The RO awarded the Veteran a 10 percent rating due to pain, and not due to a limitation of range of motion, because the Veteran's range of motion was within normal limits. In April 2007, the Veteran was afforded a VA examination for her back. As to range of motion measurements, the Veteran had a: forward flexion of 90 degrees with pain at 90 degrees; extension of 30 degrees with pain at 30 degrees; right lateral flexion of 30 degrees with pain at 30 degrees; left lateral flexion of 30 degrees with pain at 30 degrees; right rotation of 30 degrees with pain at 30 degrees and left rotation of 30 degrees with pain at 30 degrees. There was pain on active and passive motion. After repetitive movement range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. There was no evidence of ankylosis or IVDS. In April 2010, the Veteran was afforded a VA examination for her back condition. The Veteran reported that she hurt her back in basic training. She reported that she will have flares of back pain with strenuous activity. She must stretch before she can walk after sitting. The Veteran also reported that while she was a cook, she strained her back when she was loading a truck to go to the field. The Veteran reported having pain 1-6 days per week, that was mild, and affected her mid back. She reported that when she has flare-ups, that they are severe and last 1-2 days. These flare-ups are precipitated by lifting, pulling, bending, and twisting. When she has a flare-up she goes to bed, uses heat and avoids any activity. The range of motion testing revealed forward flexion of 80 degrees, extension 0 degrees, left lateral flexion 30 degrees, left lateral rotation 30 degrees, right lateral flexion 20 degrees, and right lateral rotation was 30 degrees. The examiner noted that there was objective evidence of pain on active range of motion testing. The examiner stated that there is objective evidence of pain following repetitive motion, but that there are no additional limitations. The examiner indicated that the Veteran would need to be careful or she would have increased back pain doing her job. In May 2013, the Veteran was afforded a VA examination for her back. The examiner indicated that the Veteran had a diagnosis of spondylosis with degenerative changes T5-6. The Veteran reported that she has pain that goes down her thighs and legs. The examiner stated that this would not be consistent with the spinal levels she is service connected for currently. The examiner also noted that degenerative changes are not present on today's x-ray. The Veteran reported having flare-ups and she stated, "I do naproxen, sometimes I might go up the steps backwards." The examiner noted that the Veteran's range of motion testing revealed, the Veteran had a forward flexion of 70 degrees; extension of 20 degrees; right lateral flexion of 25 degrees; left lateral flexion of 25 degrees; right lateral rotation of 20 degrees; left lateral rotation of 20 degrees. The examiner indicated that there was no objective evidence of painful motion for any of these measurements. The Veteran had no additional loss of function or range of motion following repetitive-use testing. The Veteran did not have localized tenderness or pain to palpitation for joints and/or soft tissue of the thoracolumbar spine. The Veteran did not have muscle atrophy, guarding, muscle spasms or atrophy. The Veteran's sensory exam revealed decreased sensation in the foot/toes. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner stated that the Veteran did not have IVDS. The imaging studies revealed that the Veteran has arthritis. The functional impact of the Veteran's back condition includes a restriction of heavy lifting. In October 2015, the Veteran testified at a Board hearing. The Veteran testified that she has trouble with her back, and she cannot drive. She indicated that she has bad muscle spasms. The Veteran testified that when she has flare-ups, she can bend to maybe her knee, her thigh, just a little bit below there, but she does not get too far. In August 2016, the Veteran was afforded a VA examination for her back. The Veteran indicated that she has had physical therapy for her back condition, and that she bought a tens unit which she sometimes uses for her back pain. The Veteran indicated that the weather would cause flare-ups of back pain. The examiner noted that the Veteran's range of motion testing revealed, that she had a forward flexion of 90 degrees; extension of 10 degrees; right lateral flexion of 30 degrees; left lateral flexion of 30 degrees; right lateral rotation of 30 degrees; left lateral rotation of 30 degrees. The examiner noted that the Veteran exhibited pain during each of these tests. There is no evidence of pain with weightbearing or objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran had no additional loss of function or range of motion following repetitive-use testing. The examiner indicated that he was unable to say without speculating if the Veteran had pain, weakness, fatigability, or incoordination significantly limiting the Veteran's functional ability with repeated use over a period of time, or during flare-ups. The examiner explained, Pain, weakness, fatigability, or incoordination may significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. However, it is not possible to describe any additional limitations in terms of degrees of range of motion lost as it would require pure speculation to explain this. The Veteran did not have muscle atrophy, guarding, muscle spasms or atrophy. The sensory exam was normal, and the Veteran does not have radiculopathy, or IVDS. The examiner noted that the 2015 MRI revealed, "mild, multilevel degenerative changes of the lumbar spine." In May 2019, the Veteran was afforded a VA examination for her back. The examiner indicated that the Veteran had a diagnosis of spondylosis with degenerative changes T5-6. The Veteran reported that she had flare-ups that resulted in sharp pains that made it difficult for her to breathe, walk, or sleep. The Veteran reported having functional loss due to her back condition including, pain, stiffness, limited range of motion, difficulty with heavy lifting, prolonged sitting or standing. The examiner noted that the Veteran's initial range of motion testing revealed, that the Veteran had a forward flexion of 60 degrees; extension of 20 degrees; right lateral flexion of 20 degrees; left lateral flexion of 20 degrees; right lateral rotation of 20 degrees; left lateral rotation of 20 degrees. The examiner noted that pain caused functional loss. There is no evidence of pain with weight bearing, and no evidence of objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The examiner noted that the Veteran's observed repetitive use range of motion testing revealed, that the Veteran had a forward flexion of 55 degrees; extension of 15 degrees; right lateral flexion of 15 degrees; left lateral flexion of 15 degrees; right lateral rotation of 15 degrees; left lateral rotation of 15 degrees. The functional loss included pain and lack of endurance. The examiner noted that the Veteran's repeated use over time demonstrated she had a forward flexion of 50 degrees; extension of 10 degrees; right lateral flexion of 10 degrees; left lateral flexion of 10 degrees; right lateral rotation of 10 degrees; left lateral rotation of 10 degrees. The functional loss included pain and lack of endurance. The examiner estimated the Veteran's range of motion during flare-ups as, having a forward flexion of 45 degrees; extension of 10 degrees; right lateral flexion of 10 degrees; left lateral flexion of 10 degrees; right lateral rotation of 10 degrees; left lateral rotation of 10 degrees. The examiner stated that the pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with flare ups. The functional loss would include pain and lack of endurance. The examiner noted that additional factors contributing to the back disability include, less movement than normal due to ankylosis, limitation or blocking, adhesions, etc.; and weakened movement due to muscle or of peripheral nerves injury, etc. The Veteran does not have muscle atrophy; guarding or muscle spasms; radiculopathy; ankylosis, or IVDS. The Veteran reported using a brace regularly and a cane constantly as assistive devices. The functional impact of working includes the following restrictions, difficulty lifting over 25-35 pounds, difficulty with prolonged sitting for more than one hour or standing for more than 30 minutes due to back pain and stiffness. The examiner indicated that there is objective evidence of pain on passive range of motion testing and non-weightbearing testing of the back. Specifically, the examiner stated, There is pain with all active weight bearing, active non-weight bearing, passive weight bearing and passive non-weight bearing starting at 60 degrees with Forward Flexion and 20 degrees with Extension, Right Lateral Flexion, Left Lateral Flexion, Right Lateral Rotation and Left Lateral Rotation. Initially, the Board finds that the evidence of record does not reflect that the Veteran had favorable or unfavorable ankylosis of the thoracolumbar spine at any point during the relevant rating period. The medical treatment records do not show a finding or diagnosis of ankylosis of the thoracolumbar spine. The April 2007, April 2010, May 2013, August 2016, and May 2019 VA examiners all indicated that the Veteran does not have ankylosis of the thoracolumbar spine. The Veteran has not contended that she has ankylosis of the thoracolumbar spine. Thus, the Board concludes that the evidence of record does not show that the criteria for entitlement to a higher rating under Diagnostic Code 5242 based on ankylosis of the thoracolumbar spine were met at any time during the relevant rating period. Accordingly, the record does not show that the Veteran had a forward flexion of the thoracolumbar spine of 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, 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 such prior to March 26, 2010, such that a rating in excess of 10 percent was warranted during that period under Diagnostic Code 5242. Specifically, in April 2007, the Veteran had a forward flexion of 90 degrees, and in April 2010 a forward flexion of 80 degrees. It was not until, the May 2019 VA examination that the Veteran had a forward flexion greater than 30 degrees but less than 60 degrees. During flare-ups the May 2019 VA examiner estimated her range of motion for forward flexion would be 45 degrees, which would be indicative of a 20 percent rating. The AOJ awarded the Veteran a 20 percent rating on March 26, 2010, the date she filed her claim, by resolving reasonable doubt in her favor. There is no evidence, that supports a rating of 20 percent until the May 2019 VA examination. However, the Board acknowledges that the Veteran was not given an adequate examination until that time. The Board notes that higher ratings are available for disabilities of the spine when rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, relating to IVDS. Under that diagnostic code, a 20 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Ratings of 40 percent or 60 percent are assigned where the incapacitating episodes occur more frequently. For purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. Note (1). In this case, the Veteran reported during the April 2010 VA examination that when she has a flare-up she goes to bed, uses heat and avoids any activity. However, the record does not show that she has required bed rest prescribed by a physician and treatment by a physician. Rather, the Veteran's periods of bed rest appear to be self-imposed and not based on the advice or prescription from a physician. In addition, the April 2007, April 2010, May 2013, August 2016, and May 2019 VA examiners all opined either that the Veteran does not have IVDS or that she does have IVDS, but that the condition has not required bed rest prescribed by a physician and treatment by a physician. In view of the foregoing, the Board finds that the evidence of record does not show that higher initial ratings were warranted at any time under Diagnostic Code 5243. The Board therefore finds that the criteria for a rating in excess of 10 percent for spondylosis with degenerative changes T5-6 prior to March 26, 2010, and a rating in excess of 20 percent from that date have not been met. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. Gilbert, 1 Vet. App. at 49. 5. Entitlement to a total disability rating for compensation based on individual employability due to service-connected disabilities (TDIU) The Veteran seeks entitlement to a TDIU based on the collective effects of her service-connected disabilities. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the issue of entitlement to a TDIU was raised as part of the Veteran's claim for entitlement to an increased rating for her right-hand frostbite disability, and her spondylosis with degenerative changes T5-6 (back disability), which were received on March 26, 2010. Therefore, the relevant appeal period is from March 26, 2009, one year prior to the receipt of the claim. See 38 C.F.R. § 3.400(o)(2). However, to warrant an effective date prior to the date of claim, there would need to be evidence showing that there had been an ascertainable increased in severity during that one-year period. "[A]n increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Effective March 26, 2009, the Veteran was service connected for frostbite of the right hand at a 30 percent rating (as awarded as part of this decision); peripheral vascular disease, left lower extremity associated with frostbite, left foot at a 20 percent rating; frostbite of the left hand at a 20 percent rating; spondylosis with degenerative changes t5-6 at a 20 percent rating; frostbite of the left foot at a 20 percent rating; frostbite of the right foot at a 20 percent rating; left tarsal tunnel syndrome with tibial sensory neuropathy associated with frostbite, left foot at a 20 percent rating; left wrist carpal tunnel syndrome with upper extremity radiculopathy of the upper, middle, and lower radicular groups at a 10 percent rating; right wrist carpal tunnel syndrome with upper extremity radiculopathy of the upper, middle, and lower radicular groups at a 10 percent rating; right tarsal tunnel syndrome with tibial sensory neuropathy associated with frost bite, right foot at a 10 percent rating; painful right lower extremity scar associated with hammertoes, right foot status post arthroplasty 2nd to 5th digits at a 10 percent rating; growth, both 4th fingers at a 0 percent rating. Accordingly, the schedular percentage requirements for a TDIU were met during the relevant period, as the Veteran had a combined rating of 70 percent or higher throughout the relevant period. See 38 C.F.R. § 4.16(a). The Board notes that since March 26, 2009, the Veteran has been awarded service connection for persistent depressive disorder effective June 2019, with a 50 percent rating; cervical strain and intervertebral disc syndrome with degenerative arthritis of the spine associated with spondylosis with degenerative changes t5-6 effective June 2019 with a 20 percent rating; painful right lower extremity scar associated with hammertoes, right foot status post arthroplasty 2nd to 5th digits effective June 2020 with a 10 percent disability. The Board acknowledges this is not a comprehensive list, and there are other disabilities with noncompensable ratings, or ratings that may have increased since March 26, 2009. Turning to the evidence of record, in April 2010, the Veteran submitted an application for increased compensation based on unemployability, she indicated that she was presently working. In March 2013, the Veteran submitted a new application indicating that she has a combined rating of 90 percent. She also indicated that she has not worked since 2011 but did not complete the application. In November 2016, the Veteran submitted a new application for entitlement to increased compensation based on unemployability and indicated that she last worked in October 2011. She last worked as a counselor but had to leave that job because of her disabilities. In 2012 she applied for a job as a substitute teacher. The Veteran indicated that she completed 4 years of college. In an April 2009 VA examination for her frostbite, the Veteran indicated that she worked with mentally disabled adults. In a later April 2009 VA examination, the examiner noted that the Veteran was employed but that the Veteran is not able to work in a career that requires "prolonged standing or ambulation. She would benefit from a career that allows to be seated mostly and very limited ambulation, standing and climbing." The examiner also stated that she would be able to manage more sedentary work, that does not require repetitive tasks of her hands because of her service-connected carpal tunnel. The Veteran has moderate difficulty doing chores, shopping, exercise, and cannot participate in any sports. The Veteran reported an incident where she was working with a sewing machine and was in contact with the small light bulb and did not realize it was hot, she could not feel it and she burned her finger. During the April 2013 VA foot examination, the examiner indicated that the Veteran's multiple "pedal problems" prevent her from performing jobs that require her to stand on her feet for a long time. In the May 2013 right-hand frostbite VA examination, the examiner indicated that the Veteran's disabilities would restrict her from prolonged use of her hands and prolonged walking. During the May 2013 spine examination, the examiner noted that the Veteran would be restricted from heavy lifting. In October 2015, the Veteran testified at a Board hearing. She testified that she left her full-time job in 2011 because of her disabilities. Specifically, she testified, "was working with mentally disabled adults, but because they needed the assistance with balance and had to hold onto me, I could not maintain their weight because I had trouble maintaining my own." She indicated that her back got worse when she was working with them. The Veteran testified that she then did some sewing, she said she made $200 a month, as the highest income. She then tried to work as a substitute teacher. The Veteran indicated that she does not do the shopping, cooking, or cleaning at home. She can usually drive about 15-20 minutes, and on a very good day her max would be 30 minutes. She cannot be in temperatures below 60 degrees. The Veteran indicated that she was written up at work. Specifically, she stated, One reason, because of the stiffness and my movement, and when I was working with the adults, sometimes you have to be their feet and you have to do all the movement. So there were times I would have to take off because I was hurting more and they couldn't use me for balance because I couldn't move around myself. The Veteran also stated that she has difficulty getting in and out of a car because of her back/spine conditions. In March 2017, the Veteran submitted a statement in support of claim, she indicated that she has not been able to work since 2011. She tried to sew because of her financial situation, however, she found that her disabilities prevented her from being able to sew. The Veteran stated that her feet and ankles have kept her from being able to get out of the house except for doctor's appointments. The Veteran also stated that her husband does "most of the cooking, assists with laundry, housework, grocery shopping, all outside chores and does most of the driving." The Veteran indicated that she has been falling and must have assistance getting in and out of the bathtub. In view of the above, the Board finds that the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation. The Board acknowledges that the Veteran has obtained a degree in business. However, the Board finds that the Veteran would have difficulty getting to any job as her disabilities prevent her from driving more than 10-15 minutes, and she has difficulty getting in and out of a car. The Veteran is unable to cook, clean, do housework, or shop on her own very well. The Veteran is unable to stand for significant periods of time, which creates a restriction of obtaining a job where she can sit down. The Veteran's frostbite in her hands and her carpal tunnel limits her ability to perform repetitive tasks of her hands. The Veteran burned her hand on a lightbulb while sewing because she could not feel anything due to her frostbite. The Veteran also has a spondylosis with degenerative changes T5-6 (back disability) that restricts her from lifting over 25-35 pounds, prolonged sitting for more than one hour or standing for more than 30 minutes due to back pain and stiffness. The Board acknowledges that the Veteran has a plethora of other disabilities, but her frostbite in her hands and feet, other foot disabilities, back disability, and carpal tunnel disabilities prevent her from securing a substantially gainful occupation. The Board also notes that while the focus has been on the Veteran's physical disabilities, she also has a 50 percent rating for depression, which further impacts her ability to work. As such, in view of the Veteran's service-connected disabilities, education, and work history, the Board finds that she would require a sheltered environment that would accommodate her substantial limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). The Board concludes that resolving reasonable doubt in favor of the Veteran the probative evidence of record demonstrates that the Veteran was unable to secure or follow a substantially gainful occupation due solely to her service-connected disabilities. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.