Citation Nr: 22010580 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 11-05 753 DATE: February 24, 2022 ORDER Entitlement to service connection for a right hand pain condition is denied. Entitlement to a compensable evaluation prior to March 9, 2021, and to an evaluation in excess of 10 percent thereafter, for service-connected allergic rhinitis is denied. Entitlement to an evaluation in excess of 10 percent disabling prior to March 9, 2021, for service-connected lumbosacral strain is denied. Entitlement to an evaluation of 40 percent, but no higher, for service-connected lumbosacral strain is granted effective March 9, 2021. Entitlement to an evaluation in excess of 40 percent for service-connected lumbosacral strain on or after March 9, 2021, is denied. A total disability rating based on individual unemployability is granted [effective date to be determined by the RO]. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a right hand pain condition at any time during or approximate to the pendency of the claim. 2. Prior to March 9, 2021, the Veteran's allergic rhinitis was characterized by running nose, watery left eye with drainage, nasal congestion, sneezing, and coughing, but without signs of nasal obstruction, and without nasal polyps, septal deviation, permanent hypertrophy of the turbinates, tissue loss, scarring, deformity of the nose, or any granulomatous conditions. 3. It was first factually ascertainable on March 9, 2021, that the Veteran's allergic rhinitis was characterized by a greater than 50 percent obstruction of the nasal passage on both sides, but not by complete obstruction of either side, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions. 4. Prior to March 9, 2021, the Veteran's service-connected lumbosacral strain was manifested by forward flexion of at least 90 degrees and combined range of motion of 230 degrees, but with painful flexion and extension at the end of range of motion. 5. As of March 9, 2021, it was first ascertainable that the Veteran's service-connected lumbosacral strain was manifested by limitation and functional impairments that most closely approximated forward flexion of 30 degrees or less, particularly during flare-ups and after repeated use over time. 6. The Veteran's service-connected disabilities render her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hand pain condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable evaluation prior to March 9, 2021, and to an evaluation in excess of 10 percent thereafter, for service-connected allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.97, Diagnostic Code 6522. 3. The criteria for entitlement to an evaluation in excess of 10 percent disabling prior to March 9, 2021, for service-connected lumbosacral 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 5010-5242. 4. As of March 9, 2021, the criteria for entitlement to an evaluation of 40 percent, but no higher, for service-connected lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5242. 5. The criteria for entitlement to an evaluation in excess of 40 percent for service-connected lumbosacral strain on and after March 9, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5242. 6. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1992 to March 1998. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 Board Hearing. The claims file contains a transcript of the hearing. In a June 2021 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board notes that the claims of entitlement to increased ratings for allergic rhinitis and lumbosacral strain resulted in partial grants upon development and readjudication. See November 2021 Rating Decision (granting a 10 percent rating for allergic rhinitis effective March 9, 2021); December 2021 Rating Decision (granting a 40 percent rating for lumbosacral strain effective December 8, 2021). The increased rating claims on appeal have been recharacterized to reflect these developments. In addition to the claims listed above, the Board also remanded a claim of entitlement to service connection for asthma as secondary to the service-connected allergic rhinitis. After the requested development, the RO granted that claim and assigned a 30 percent disability rating for asthma. See November 2021 Rating Decision. The original appeal was resolved by the grant because it related only to entitlement to service connection and did not encompass the downstream elements. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed.Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating, is separate from any prior appeal regarding entitlement to service connection). Therefore, there is no pending appeal before the Board regarding the Veteran's now service-connected asthma. In addition, the issues on appeal have been expanded to include entitlement to TDIU. Entitlement to TDIU is "part and parcel" of the determination of the appropriate rating for a disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). At the VA examinations conducted pursuant to the Board's remand, the Veteran revealed that she had not been working, possibly due to her service-connected disabilities. See December 2021 VA Memo re Inferred Issue (discussing evidence elicited at 2021 VA examinations regarding unemployability). As discussed below, there is substantial evidence that her service-connected disabilities would prevent her from obtaining and maintaining gainful employment, notwithstanding that she also has serious non-service-connected disabilities that also may be a cause of her current unemployment. 1. Entitlement to service connection for a right hand pain condition The Veteran contends that she has a right hand condition characterized by pain that is related to her active service, particularly including an in-service episode of pain in the right hand after a fall during physical training in April of 1993 and a January 1995 notation of pain in the right hand for three months. See March 2021 Board Hearing Tr. at 3-7. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right hand disability including as characterized by pain and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In making this finding, the Board acknowledges Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. Here, as discussed below, the Board finds that, though the Veteran credibly reported right hand pain at her Board hearing, the greater weight of the evidence is against finding that she has a disability of the right hand, including as due to pain. In connection with an earlier claim, the March 2010 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of "pressure" in her fingers, stiffness, and aching and some numbness in the ring and small fingers, she did not have a diagnosis of arthritis or any other medically diagnosable condition of the right hand. The examiner noted full range of motion, normal x-rays, and otherwise normal examination results. The examiner indicated it was not possible to provide a nexus opinion because the Veteran had no disability of the right hand. As part of the development of this claim, the October 2021 VA examiner evaluated the Veteran and, again, determined that the Veteran did not have any current disability of the right hand. The examiner documented the Veteran's report that she does not have any current or chronic right hand disability and that she uses only her right hand because she is unable to use her left hand due to a stroke. Physical examination revealed full range of motion, normal grip strength, and otherwise normal function of the right hand. There was no evidence of pain on range of motion testing. The examiner noted normal x-rays from 2010 and opined that the Veteran's claimed right hand condition had no impact on occupational functioning. The examiner provided an opinion in which he noted that no diagnosis was found, that the Veteran denied any current or chronic right hand disability, that the Veteran uses her right hand, and that there is no objective evidence of chronicity of the right hand condition noted in service to the present. Likewise, despite consistent treatment from at least 2001 to the present, VA and private treatment records do not contain a diagnosis of a right hand disability or otherwise establish that the Veteran has a disability of the right hand due to pain or other disabling symptoms. While the Veteran believes she has a current right hand disability, she and her lay witnesses are not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing to diagnose a condition or determine that subjective right hand symptoms impair the functioning of the hand sufficiently to constitute a disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, as noted, the VA examiner documented the Veteran's reports at that examination of full use of her hand and no "current issues" with the right hand. Consequently, the Board gives more probative weight to the competent medical evidence. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Accordingly, because the Veteran did not have a right hand disability at any relevant time, the criteria for establishing service connection for a right hand condition due to pain have not been met. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); 38 C.F.R. § 4.125(a); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998). The evidence is not in approximate balance, but is persuasively against the claim; therefore, there is not reasonable doubt to be resolved in favor of the Veteran. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Entitlement to service connection for a right hand pain condition is denied. Increased Rating 2. Entitlement to a compensable evaluation prior to March 9, 2021, and to an evaluation in excess of 10 percent thereafter, for service-connected allergic rhinitis The Veteran contends that she is entitled to higher ratings for her allergic rhinitis because of increased symptomatology. See March 2021 Board Hearing Tr. at 3. Allergic rhinitis is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522 (allergic or vasomotor rhinitis). Under DC 6522, a 10 percent rating is warranted for rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for rhinitis with polyps. The October 2021 VA examiner evaluated the Veteran's rhinitis and documented her report of continued allergy symptoms including running nose, watery left eye with drainage, nasal congestion, sneezing, and coughing. She reported treatment by a private allergist, with her most recent injection for allergies occurring in 2019. The examiner indicated that the Veteran had a greater than 50 percent obstruction of the nasal passage on both sides due to her rhinitis, but no complete obstruction of either side, no permanent hypertrophy of the nasal turbinates, no nasal polyps, no granulomatous conditions, and no other pertinent physical findings, complications, conditions, signs, or symptoms related to her allergic rhinitis. VA treatment records note the Veteran's rhinitis and outside consultations until, approximately, July 2019, but do not indicate any physical findings with respect to obstruction of the nasal passages, polyps, or other findings which would be relevant to the rating criteria. The Board notes that, pursuant to the June 2021 Board Remand, VA sent the Veteran a VA Form 21-4142 requesting that she identify any private treatment providers so that VA could assist in obtaining any relevant records. The Veteran did not provide the requested release. The Board also notes that, at her Board hearing, she reported that she was not currently seeing a private provider for treatment of her allergic rhinitis and that she had not seen a private provider subsequent to the cancellation of her injection regimen for asthma. See March 2021 Board Hearing Tr. at 9-10. The competent evidence of record, particularly and most persuasively including the October 2021 VA examination, supports the assignment of a 10 percent rating, but no higher, for the Veteran's allergic rhinitis pursuant to DC 6522. The question for the Board is what effective date should be assigned for this increased rating. The RO assigned an effective date of March 9, 2021, based on the Veteran's report of increased symptoms. The Board finds that this is the earliest date at which it is ascertainable that the Veteran had an increase in symptoms such that a higher rating is warranted. The most recent evaluation prior to the October 2021 VA examination was the March 2010 VA examination which found no signs of nasal obstruction, no nasal polyps, no septal deviation, no permanent hypertrophy of the turbinates, no tissue loss, scarring, or deformity of the nose, and no granulomatous conditions. In short, the 2010 VA examination was consistent with a noncompensable rating. As discussed, the VA and private treatment records available do not show signs, symptoms, or other findings which are relevant to the rating criteria. Consequently, the Board finds that the Veteran's Board hearing testimony provides the first evidence from which an increase in severity of the condition can be factually ascertained. The date of that hearing was March 9, 2021. Therefore, that is the earliest effective date for the grant of an increased rating from noncompensable to 10 percent disabling for the Veteran's service-connected allergic rhinitis. The evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). A compensable rating for the Veteran's service-connected allergic rhinitis prior to March 9, 2021, is denied. Likewise, a rating for the Veteran's service-connected allergic rhinitis in excess of 10 percent on or after March 9, 2021, is denied. 3. Entitlement to an evaluation in excess of 10 percent disabling prior to December 8, 2021, and in excess of 40 percent thereafter, for service-connected lumbosacral strain The Veteran contends that she is entitled to a higher rating because of increased symptoms of her back disability. See March 2021 Board Hearing Tr. at 3, 9, and 14. The Veteran's service-connected lumbosacral strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 rating is warranted 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.] The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's lumbosacral spine prior to March 9, 2021. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and reduced movement and increased fatigability. Because the December 2021 VA examiner's findings regarding functional loss during flare-ups and after repetitive use were based on the Veteran's reports, the Board finds that the Veteran's testimony at her March 2021 Board hearing that she had increased symptoms is sufficient to place the evidence in approximate balance as to whether the increase had occurred by March 9, 2021 (the date of the hearing). The Board finds that there is not sufficient evidence prior to March 9, 2021, to create an approximate balance of the evidence, but, instead, the evidence prior to March 9, 2021, is persuasively against assigning any higher rating. In making this finding, the Board notes that the Veteran did not identify any date prior to her hearing at which she began having flare-ups or increased symptomatology after repetitive use. VA and private treatment records reflect back pain and some pain on motion, but generally indicate the Veteran had essentially normal range of motion. See, e.g., July 2017 VA Progress Note ("Low back pain: no swelling or bruising, + paravertebral tenderness, painful flexion and extension."); August 2017 VA Physical Medicine Rehab Consult ("h/o low back pain and is also aphasic due to a stroke 2014...Patient's range of motion is within normal limits with fair muscle strength during lumbar extension and lateral bend to left and right side."). In these circumstances, the Board finds that it was not factually ascertainable prior to March 9, 2021, that the Veteran's service-connected lumbosacral strain was characterized by limitation of motion more nearly approximating 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. Additionally, the evidence prior to March 9, 2021, is persuasively against finding that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. See December 2021 VA Examination. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for prior to March 9, 2021. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). As noted, the Board finds that the Veteran's and her husband's testimony at the March 2021 Board provides a sufficient basis, in combination with the December 2021 VA examiner's findings and opinions, to conclude that she had experienced an increase in symptoms warranting an increased rating as of that date. The December 2021 VA examiner opined, based on the Veteran's credible reports of symptoms, that she had limitation of forward flexion to 38 degrees after repeated use over time and limitation of forward flexion to 32 degrees during flare-ups. The examiner further noted that the Veteran was unable to complete repetitive use testing because of "intolerable pain" and that she had significant functional limitations including interference with sitting and standing, disturbance of locomotion, and less movement than normal due to pain, fatigability, and lack of endurance. VA has previously determined that this examination supports assigning a 40 percent rating. The Board agrees. Although the forward flexion estimates were, at worst, a limitation to 32 degrees during flare-ups, the examiner also noted "intolerable pain" that prevented repetitive use testing. When the additional functional limitations of interference with sitting and standing and disturbance of locomotion are considered, the evidence is in approximate balance as to whether a 20 percent or 40 percent rating is warranted based on the examiner's findings and opinions. The Board further finds that it was first factually ascertainable, based on the Veteran's March 2021 Board hearing testimony as later interpreted in light of the December 2021 VA examiner's findings and opinions, that this level of severity was present. Consequently, it was first factually ascertainable that there was an increase in severity warranting a higher rating on March 9, 2021. Moreover, the evidence supports awarding a 40 percent rating as of that date. For the foregoing reasons, the evidence of record supports assigning a 40 percent rating, but no higher, effective March 9, 2021, for the Veteran's service-connected lumbosacral strain. The Veteran's claim is granted to that extent. But the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent prior to March 9, 2021, and against a rating in excess of 40 percent on or after that date, for her lumbosacral strain. As the evidence of record persuasively weighs against a rating in excess of 10 percent prior to March 9, 2021, and in excess of 40 percent on or after that date, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Entitlement to a rating of 40 percent for service-connected lumbosacral strain is granted effective March 9, 2021. The claim of entitlement to an increased rating is otherwise denied. 4. Entitlement to a TDIU As discussed in the Introduction, the evidence of record has raised the issue of entitlement to a TDIU. In particular, the Veteran reported at her December 2021 VA examination that she had most recently worked as a stocker for Walmart. 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). The Veteran has the following disabilities that are service connected: migraine headaches (rated 50 percent, from July 14, 2010 to the present); lumbosacral strain (rated 10 percent, from March 29, 2001, to March 9, 2021, and 40 percent thereafter); hysterectomy (rated 30 percent, from March 23, 2009, to the present); asthma (rated 30 percent, from June 18, 2009 to the present); atopic dermatitis (rated 10 percent, from March 23, 2009, to the present); right knee (most relevantly, rated 10 percent, from June 1, 2012, to the present); allergic rhinitis (rated noncompensable, from March 23, 2009, to March 9, 2021, and 10 percent thereafter); left elbow (most relevantly, rated noncompensable, from March 10, 2010, to the present); scar of the right knee (rated noncompensable). Based on the forgoing, the Veteran has had, throughout the relevant period, at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran most recently worked as a stocker for Walmart. The Veteran has not yet submitted a VA Form 21-8940 or SSA records which set forth her education and employment history. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of her disabilities. As noted by the December 2021 VA examiner, her service-connected back disability prohibits the Veteran "from performing the essential job functions of bending, twisting, standing, and walking." The examiner also note that the Veteran could not perform the lifting requirements for that job and elsewhere in the examination, noted that the back condition interfered with sitting. The October 2021 VA examiner (respiratory) noted that the Veteran's service-connected asthma prevented participation in any sustained physical exertion. The December 2015 VA examiner (migraines) found that the Veteran had prostrating attacks of migraine headache pain more frequently than once per month which affected her ability to work because they require her to rest in a dark room. The Board finds that these examiner's opinions and the entire record, establish that the Veteran's service-connected disabilities would prevent her from obtaining and maintaining substantially gainful employment in an occupation for which she is suited by education, training, and experience. In making this determination, the Board notes that the Veteran's husband did testify that she has a Master's Degree in Information Technology, but, again, the evidence is that her most recent employment was in a physically demanding position. Moreover, the migraine headaches would affect sedentary employment as would her back condition which causes pain and interferes with sitting. The Veteran's combined disability rating is now 90 percent from March 9, 2021, and was 80 percent from July 14, 2010, which is consistent with substantial limitations on occupational functioning. The Board will not assign an effective date for the award of TDIU, but will allow the RO to assign an effective date in the first instance including after any appropriate development on that issue. It is not currently clear from the record whether she had any gainful employment during the appeal period and, if so, what years. The Veteran will be able to separately appeal any assigned effective date if she disagrees with the assigned date. The evidence is in at least approximate balance regarding whether the Veteran's service-connected disabilities render her unemployable. Therefore, she is entitled to the benefit of the doubt and entitlement to a TDIU is granted. Duties to Notify and Assist As noted in the Introduction, additional notice and development was ordered in the June 2021 Board Remand to address concerns raised by the Veteran and to otherwise ensure compliance with VA's duties to notify and assist. The RO provided the requested notice and completed the requested development. Subsequent to that remand, the Veteran has not raised any specific 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). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.