Citation Nr: 22015808 Decision Date: 03/19/22 Archive Date: 03/19/22 DOCKET NO. 15-16 436 DATE: March 19, 2022 ORDER For the period beginning on September 24, 2013, entitlement to an evaluation in excess of 40 percent for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to an evaluation in excess of 20 percent for left lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDINGS OF FACT 1. For the period beginning on September 24, 2013, no favorable or unfavorable ankylosis of the lumbar spine is shown. 2. The Veteran's right lower extremity radiculopathy is manifested by moderate incomplete paralysis of the sciatic nerve. 3. The Veteran's left lower extremity radiculopathy is manifested by moderate incomplete paralysis of the sciatic nerve. 4. The Veteran is service connected for the following disabilities: major depressive disorder with PTSD (30 percent from November 28, 2011, and 70 percent from September 10, 2020); degenerative joint disease of the lumbar spine (10 percent from April 9, 2009, and 40 percent from September 24, 2013); left lower extremity radiculopathy (20 percent from November 28, 2011); right lower extremity radiculopathy (20 percent from September 24, 2013); tinnitus (10 percent from November 28, 2011); her combined ratings are 10 percent from April 9, 2009, 60 percent from November 28, 2011, 80 percent from September 24, 2013, and 90 percent from September 10, 2020. 5. The Veteran is not shown to have been rendered unable to secure and follow all forms of substantially gainful employment due to her service connected disabilities. CONCLUSIONS OF LAW 1. For the period beginning on September 24, 2013, the criteria for entitlement to an evaluation in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to an evaluation in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1987 to January 1992. These matters come before the Board of Veteran's Appeals (Board) on appeal from a July 2012 rating decision by the Regional Office (RO). 1. For the period beginning on September 24, 2013, entitlement to an evaluation in excess of 40 percent for a lumbar spine disability The Veteran's lumbar spine disability is currently assigned a 10 percent rating prior to September 24, 2013, and 40 percent thereafter under Diagnostic Code 5242. This Board decision involves entitlement to a higher initial rating for the period beginning on September 24, 2013, as the prior period was decided by a February 2020 Board decision. The Veteran's lumbar disability is currently rated under Diagnostic Code 5242, which generally provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (DC 5235-5243). Although some of the schedular rating criteria for musculoskeletal disabilities were amended on February 7, 2021, the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235-5243) remains essentially unchanged as a practical matter in this case. See 85 Fed. Reg. 230 (Nov. 30, 2020). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability 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 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (Diagnostic Codes 5235-5243) (2020). The Veteran was afforded VA examinations of the spine in May 2017 and May 2018. A February 2020 Board decision found the 2017 and 2018 VA examinations to be inadequate as to the lumbar spine disability because the examiners did not adequately address functional loss during flare-ups or with repeated use over time or provide ranges of motion of the lumbar spine pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). The Board remanded the claim so that a new VA examination could be performed. Pursuant to the Board's remand, a new VA examination was performed in May 2021. The next higher 50 percent rating criteria under the General Rating Formula for Diseases and Injuries of the Spine (DC 5235-5242) contemplate favorable ankylosis, but no ankylosis is shown in any of the medical evidence of record, including the May 2021 VA examination report. Without medical evidence of ankylosis of the spine, the claim for a rating in excess of 40 percent under Diagnostic Code 5242 must be denied. The Board has considered whether the functional equivalent of ankylosis is shown. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. "Ankylosis is a medical term meaning 'immobility and consolidation of a joint due to disease, injury, or surgical procedure.'" See id. (quoting Dorland's Medical Dictionary). The Board finds, however, that there is no evidence of the functional equivalent of ankylosis or immobility of the Veteran's lumbar spine. The May 2021 VA examination report shows the Veteran was being examined during a flare-up, and she still had forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. The Board has also considered whether the Veteran would be entitled to a higher rating for her lumbar spine disability under Diagnostic Code 5243, Intervertebral Disc Syndrome (IVDS) under either the version in effect prior to the amendments effective February 7, 2021, or under the current version. When a regulation changes during the course of a claim or an appeal, including a change in rating criteria, the version most favorable to a veteran will apply, to the extent permitted by any stated effective date in the amendment. 38 U.S.C. § 5110(g). In this particular case, however, there is no evidence of diagnosed IVDS. The May 2021 VA examiner opined the Veteran does not have IVDS, and there is no other medical evidence of record showing diagnosed IVDS. Therefore, rating the disability under Diagnostic Code 5243 as IVDS, under the current version of the diagnostic code, or the pre-February 2021 version, would not be appropriate. In this case, the Veteran has not contended, and the evidence does not suggest, that she has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether referral for extraschedular consideration is warranted if 38 C.F.R. § 3.321(b)(1) is neither specifically sought by the claimant nor reasonably raised by the facts found by the Board). In summary, the Board concludes that for the period prior to September 24, 2013, referral to the Director of Compensation and Pension for extraschedular consideration of a TDIU is not warranted, and for the period beginning on September 24, 2013, entitlement to a TDIU is not warranted, and, therefore, the claim is denied. 2. Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy 3. Entitlement to an evaluation in excess of 20 percent for left lower extremity radiculopathy The Veteran's left lower extremity radiculopathy is currently assigned a 20 percent rating under Diagnostic Code 8520, effective November 28, 2011. Her right lower extremity radiculopathy is assigned a 20 percent rating under Diagnostic Code 8520, effective September 24, 2013. The Veteran seeks higher initial ratings. Diagnostic Code 8520, sciatic nerve, paralysis of, provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate, 40 percent for moderately severe, and 60 percent for severe with marked muscular atrophy. An 80 percent rating is provided for complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a (2022). A November 2011 VA examination report (spine) shows strength testing was 5/5, no muscle atrophy was found, deep tendon reflexes were 2+, sensation to light touch was normal, and straight leg testing was negative. Nevertheless, the examiner noted "moderate" symptoms of radicular pain or radiculopathy in the Veteran's left lower extremity, but no radicular symptoms in the right lower extremity. For the left lower extremity radiculopathy, the examiner opined there was "moderate" sciatic nerve involvement. Regarding the impact of the lumbar disability and left lower extremity radicular symptoms on the Veteran's occupational functioning, the examiner noted the Veteran reported she cannot stand more than three hours, cannot lift during flares, but that she said she was able to perform sedentary work and was currently looking for employment. A September 2013 VA examination report (peripheral nerves) shows the Veteran reported symptoms of foot numbness. Muscle strength testing was 5/5, reflexes were 2+, but sensory examination of the lower extremities was decreased. No trophic changes were found. Straight leg testing was positive. Symptoms of "moderate" paresthesias and/or dysesthesias and numbness were noted bilaterally. The examiner opined that the right lower extremity radiculopathy was "mild," but the left lower extremity radiculopathy was "moderate." The examiner opined that the Veteran's disabilities partially impaired her ability to perform physical activities such as heavy lifting, pushing, or pulling. A July 2014 VA neurology record shows EMG/NCS testing for the right lower extremity was normal. There was no electrophysiological evidence of a large-fiber peripheral neuropathy, and no compelling evidence of a right lumbosacral radiculopathy. See CAPRI, received July 2018 at p.381. A May 2017 VA examination report (peripheral nerves) shows the Veteran reported symptoms of bilateral foot numbness. The examiner noted that July 2014 nerve conduction studies (NCS) were normal, which did not show radiculopathy and that the reported foot numbness was more consistent with peripheral neuropathy. The examiner diagnosed "mild" sciatic sensory neuropathy of the bilateral lower extremities. Muscle strength testing was 5/5, reflexes were 2+, but sensory examination of the lower extremities was decreased. No trophic changes were found. The examiner characterized the severity as "mild" incomplete paralysis of the sciatic nerve. The examiner opined that the Veteran's bilateral lower extremity neuropathy did not affect her ability to work. An October 2017 addendum opinion from the same May 2017 VA examiner was obtained to clarify whether the Veteran had radiculopathy of the bilateral lower extremities. The examiner opined that the radiculopathy previously diagnosed was not associated with the Veteran's lumbar spine disability because a radiculopathy would be expected to radiate from the back to the buttocks, knees, lower legs, and feet, whereas the Veteran only complained of numbness of her feet, which is more consistent with a peripheral neuropathy. The examiner further reasoned that the July 2014 EMG/NCS testing was normal and was negative for radiculopathy or a peripheral nerve condition. The examiner opined her peripheral neuropathy may be due to B12 deficiency, undiagnosed diabetes mellitus, tobacco abuse, shoe wear, extremity edema, or any other etiology of peripheral neuropathy. A May 2018 VA examination report (peripheral nerves) shows the examiner diagnosed bilateral lower extremity radiculopathy. The Veteran reported pain and numbness in her feet. The examiner noted peripheral nerve symptoms of moderate intermittent pain, and mild paresthesias and/or dysesthesias and numbness in both lower extremities. Muscle strength testing was 5/5, reflexes were 2+, no muscle atrophy was found, but sensory exam was decreased. No trophic changes were found. The examiner noted the Veteran used a cane. The examiner opined there was moderate incomplete paralysis of the sciatic nerve in both lower extremities. The examiner opined the Veteran's condition did not affect her ability to work. A June 2018 VA neurology record shows another EMG study was performed. The impression was of an abnormal study of "uncertain etiology" for her bilateral lower extremity sensory complaints. See VA examination report, May 2021. There was no electrodiagnostic evidence of a focal lower extremity mononeuropathy present. Bilateral NCS testing, including tibial, peroneal motor, and sural, and superficial sensory nerve testing was all essentially normal. A May 2021 VA examination report shows the examiner diagnosed bilateral lower extremity radiculopathy. The Veteran reported pain radiating down her legs to her feet, as well as tingling and numbness. The examiner noted symptoms of "moderate" constant pain, paresthesias and/or dysesthesias, and numbness bilaterally. Muscle strength testing was 5/5. No muscle atrophy was found. Reflexes were 2+. Sensation to light touch was decreased. No trophic changes were found. The examiner characterized the Veteran's lower extremity radiculopathy as "moderate" incomplete paralysis of the sciatic nerve bilaterally. The examiner noted that the most recent EMG/NCS testing showed no electrodiagnostic evidence of a focal lower extremity mononeuropathy present, and bilateral NCS testing, including tibial, peroneal motor, and sural, and superficial sensory nerve testing was all essentially normal. Regarding the impact of the Veteran's bilateral lower extremity radiculopathy, and considering her service connected lumbar spine disability, the examiner opined it would impair activities such as running, jumping, climbing and walking long distances. The Board has considered the fact that the Board previously remanded the claims in February 2020 so that clarification could be obtained as to whether the Veteran's reported symptomatology in her lower extremities was in fact radiculopathy caused by her service connected spinal disease, as opposed to nonservice connected peripheral neuropathy (such as due to vitamin B12 deficiency, diabetes, or tobacco abuse) particularly given the normal or inconclusive findings in the 2014 and 2018 EMG/NCS testing. As noted above, a new May 2021 VA examination was performed, but the examiner did not provide any further clarification. As such, the Board will give the benefit of the doubt and consider the Veteran's reported symptoms in her lower extremities as attributable to her service connected bilateral lower extremity radiculopathy. Having carefully considered all of the evidence of record, the Board finds that the weight of competent and credible evidence is against finding that the next higher 40 percent rating criteria under Diagnostic Code 8520 have been met or approximated for the right or left lower extremity radiculopathy. All of the VA examiners characterized the Veteran's bilateral lower extremity radiculopathy as, at most, "moderate," and involving "moderate" incomplete paralysis of the sciatic nerve. None of the examiners characterized the severity as moderately severe or severe, and the 2014 and 2018 nerve testing results were questionable. In this case, the Veteran has not contended, and the evidence does not suggest, that she has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, supra. The Board concludes that entitlement to initial ratings in excess of 20 percent for right and left lower extremity radiculopathy (each) is not warranted, and the claims are denied. 4. Entitlement to a TDIU The Veteran claims entitlement to a TDIU due to her service connected disabilities. A total rating based on unemployability may be granted if 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 (2021); see also 38 C.F.R. §§ 3.340(a), 3.341(a) (2021). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a) (2021). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2021). The Veteran's service-connected disabilities were as follows: major depressive disorder with PTSD (30 percent from November 28, 2011, and 70 percent from September 10, 2020); degenerative joint disease of the lumbar spine (10 percent from April 9, 2009, and 40 percent from September 24, 2013); left lower extremity radiculopathy (20 percent from November 28, 2011); right lower extremity radiculopathy (20 percent from September 24, 2013); tinnitus (10 percent from November 28, 2011). Her combined ratings are 10 percent from April 9, 2009, 60 percent from November 28, 2011, 80 percent from September 24, 2013, and 90 percent from September 10, 2020. Therefore, the schedular criteria for a TDIU were clearly met from September 24, 2013, as the Veteran had one disability rated as 40 percent or greater disabling (lumbar spine), with a combined disability rating of 70 percent or greater. Prior to September 24, 2013, the schedular criteria for a TDIU rating were not met. The Veteran had no single disability rated as 60 percent or greater disabling, and she did not otherwise have a single disability rated as 40 percent or more disabling, with a combined rating of 70 percent or greater. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, rating boards will refer to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). "If the Director denies an extraschedular TDIU rating, the claim returns to the Board, which reviews the denial without deference to the Director just as the Board would review the RO's denial without deference to the RO. The Board then decides whether to award or deny an extraschedular rating." Ray v. Wilkie, 31 Vet. App. 58 (2019) (citing Wages v. McDonald, 27 Vet. App. 233 (2015)). For a veteran to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is not recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, and not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran reported on her Form 21-8940 that her last employment was from July 2008 to December 2008 at [REDACTED] (later acquired by [REDACTED]) in customer service. Prior to that, she reported having worked at [REDACTED] in sales from June 2004 to November 2007, then at [REDACTED] in a call center from November 2007 to January 2008, then [REDACTED] as a cashier from January 2008 to February 2008, and then at [REDACTED] in a call center from February 2008 to June 2008. In this case, the Board notes there are several significant inconsistencies in the Veteran's reports of why she left her last employer and contends that she is unable to maintain employment. In a July 2009 statement, she asserted that she was unable to maintain employment due to back and foot disabilities. As noted above, she is presently service connected for a lumbar spine disability, and bilateral lower extremity radiculopathy, which would include foot symptoms. In a May 2010 statement, she asserted that she was unable to maintain employment due to back and hip problems. The Board notes she previously reported in July 2009 correspondence that she had hip displacement, and she is not service connected for any hip disability. She reported to a November 2011 VA examiner (spine) that she told the examiner that she could stand three to four hours before having to sit, and that she was able to perform sedentary work and was seeking employment. More recently, in a November 2021 statement, she asserted she lost her jobs due to her back disability and cites to one occasion while working for Eastman Shoe when she reports that she had a flare-up of pain after pulling a file drawer, was taken away by ambulance, and was unable to lift herself up for two weeks. She similarly reported in January 2019 that she became unable to work due to her lumbar disability. See Congressionals, received January 30, 2019, at p.5. She submitted a lay statement from her former husband regarding having a few hospitalizations due to the Veteran's back condition but provided no dates. See Buddy statement, March 2018. Her formal TDIU applications submitted in January 2010 and December 2021, however, do not list [REDACTED] as one of her employers, which forms show her reported work history from 2004 to 2008. Her VA treatment records show different accounts by her as to the reason for quitting her last employment. January 2009 VA treatment records show she reported to VA clinicians that she was under an incredible amount of stress because her husband had a myocardial infarction one year prior that depleted their finances, he was unemployed, and they were in the process of being evicted from their home. She reported that she had a "breakdown" the month prior (December 2018). See CAPRI, received July 2018 at p.836 and 847. Similarly, a February 2009 VA treatment record shows she reported she had a "nervous breakdown" in December 2008 and left her job. See CAPRI, received July 2018 at p.832; see also Form 21-4142, January 22, 2009. In contrast to the Veteran's statements regarding her back and lower extremities, VA treatment records from 2013 to 2018 show she reported exercising on a treadmill and exercise bike and was discussing the possibility of starting yoga. See, e.g., CAPRI, received July 2018 at p.28, 153, 368, 370, 374, 568. The records also show she has a car and is able to drive. See id. at p.633. April 2013 VA treatment records show the Veteran reported mostly "mild" lumbar pain. See CAPRI, received July 2018 at p.568 and 569. A May 2019 MRI of the lumbar spine shows an impression of "minimal to mild" lumbar degenerative disc disease, and "mild" lumbar facet arthritis. See Congressionals, received June 2019 at p.6 of 13. The November 2011 VA examination report (spine) shows the Veteran reported she cannot stand more than three hours, cannot lift during flares, but that she said she was able to perform sedentary work and was currently looking for employment. The September 2013 VA examination (peripheral nerves) shows the examiner opined that the Veteran's disabilities partially impaired her ability to perform physical activities such as heavy lifting, pushing, or pulling. The May 2017 and May 2018 VA examiners (peripheral neuropathy) opined that the Veteran's bilateral lower extremity neuropathy did not affect her ability to work. The May 2021 VA examiner (spine) opined that the Veteran's lumbar spine disability only affected her occupational functioning by partial impairment physical activities of employment such as bending, running, jumping, climbing and walking long distances. At the most recent September 2020 VA examination for her service connected PTSD, the examiner noted that it was curious that the Veteran claimed she could not remember her own name at work answering customer calls, yet she was able to recite symptoms from the general rating formula for mental health disorders "verbatim." The Board also notes that the VA treatment records also indicate a rather significant reported medical history of a "transient ischemic attack" (T.I.A.) or "mini stroke" sometime around 2007, and the Veteran believed the T.I.A. caused issues with her memory retrieval and affected her ability to handle stress. See CAPRI, received July 2018 at p.541 and 830. Also significant is the Veteran's reported left hip problems. A September 2013 VA examination report (spine) shows she reported that due to occasional hip problems ("goes out"), she uses a cane. She reported to a May 2021 VA examiner (peripheral neuropathy) that her left hip caused her problems getting into and out of the car because she could not lift her left leg. Also significant is her reported a history, apparently after her separation from her husband, of abuse by roommates during the period on appeal. A January 2013 record shows she reported her roommate, J., beat her on three occasions and put her in the hospital. See id. at p.595. A July 2013 VA treatment record shows she reported she was living with three alcoholics, and one named J. was abusive towards her. See id. at p.550. In November 2013, she reported history of a T.B.I. and nose fracture due to a boyfriend beating her. See id. at p.541. In July 2016, she reported her roommates were up drinking all night and threatening her. See id. at p.293 and 301. The Board has carefully reviewed all of the other evidence of record, including but not limited to all of the VA examination reports, as well as statements made by the Veteran, her former husband, and a female roommate. A November 2011 VA mental health examination report shows diagnoses of "partner relational problems" and an anxiety disorder, neither of which are service connected. The examiner noted the Veteran reported living with an abusive boyfriend who drank heavily and physically abused her. The Veteran reported she received medical attention for some of her injuries, neighbors called police for her safety, and she reported she feared for her safety. The examiner noted her current stressors were financial problems and partner relational problems. The examiner noted "her current mental health difficulties appear to be primarily associated with her abusive relationship with her boyfriend." Her overall level of social and occupational impairment was characterized by the examiner as: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. She reported she last worked in February 2009 at a gas station, and previously worked in sales and as an administrative assistant. The Board notes, however, that the Veteran reported in her claim (Form 21-8940) that she last worked in December 2008 at Reinhart Food Service in customer service, and previously at Starter T-Mobile and Wawa. She scored 28/30 on a cognitive functioning test (SLUMS), which the examiner noted suggested good overall cognitive functioning. She reported she completed three years of college and was independent in her activities of daily living. The examiner noted that although the Veteran reported a history of stressors in service, she did not endorse any symptoms of PTSD. As noted above, the September 2020 VA examination report (mental) shows that examiner noted that it was curious that the Veteran claimed she could not remember her own name at work answering customer calls, yet she was able to recite symptoms from the general rating formula for mental health disorders "verbatim." Even so, the examiner opined that the Veteran's overall level of social and occupational impairment due to her service-connected PTSD and depression was best characterized as: Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She reported she had not worked in 12 years since her last job at Reinhardt Foods in customer service, and that "her back injury caused her to have to leave." She also reported a history of having a "mental health breakdown" due to her husband's heart attack. The examiner found it noteworthy that, per the Veteran's report, the employer asked her to stay on, indicating that she was able to complete her required tasks. The Board finds that the weight of competent and credible evidence is against finding that the Veteran has been rendered unable to secure and follow substantially gainful employment at any time during the period on appeal. Overall, the Board finds the Veteran is not a credible historian regarding her reasons for quitting her last job and for being unable to work. In some statements, the Veteran alleged she has not worked since December 2008 due to her service connected lumbar spine disability. Another statement shows she cited to both her service connected lumbar disability and nonservice connected hip problems as the reason she has been unable to work. At other times, she reported she quit her last job due to a "mental breakdown" following her husband's heart attack and resultant financial stress. She has also told clinicians she has a significant post-service history of a T.I.A. or mini stroke, which she reported she believes caused memory problems and difficulty adapting to stressful circumstances. The recent September 2020 VA examiner (mental health) likewise raised concern regarding the Veteran's reported history, noting the inconsistency between the Veteran saying she could not remember her name answering phones at work, yet she was able to recite, verbatim, symptoms listed in the rating criteria at the time of the examination. Regarding her lumbar spine disability, her VA treatment records show she was exercising on a treadmill and exercise bike and discussing possible yoga classes between 2013 and 2018, which is inconsistent with the disability picture painted by the Veteran regarding her lumbar spine disability severity and its effect on her ability to work. Based on all of these inconsistent statements by the Veteran regarding her history and symptomatology, the Board finds her reported history to be not credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("the Board as fact finder is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements"). Thus, there is simply no consistent, credible history from the Veteran upon which to base a finding that there is at least an approximate balance of evidence as to whether she was rendered unable to secure and follow substantially gainful employment due to service connected disability. In addition, the Veteran has reported a significant post-service history leading up to her quitting her last job of her former husband having a heart attack and resultant unemployment, their resultant financial stress and housing insecurity, and divorce thereafter, followed by a physically abusive boyfriend who gave her a T.B.I. and nose fracture, and then another difficult living situation with disorderly roommates, all of which nonservice connected factors certainly may have affected the Veteran's employability. The Board acknowledges that in April 2013, a VA physician, Dr. C.P., completed a federal student loan discharge application form for the Veteran, and checked the box yes as to whether the Veteran's depressive disorder and anxiety disorder prevented her from engaging in substantially gainful employment in any field. Symptoms including frequent and gross errors in attention, concentration problems, irritability, doubting herself for the simplest tasks of daily life, inability to establish relationships with peers, and suicidal thoughts were noted. See Correspondence, April 12, 2013. A VA psychiatry note of the same date, however, is extremely brief, and shows the Veteran was a walk-in for the purpose of requesting the student loan discharge form be completed. The brevity of the underlying treatment record and the form itself weighs heavily against its probative value. Regardless, as explained above, the Board finds the Veteran's own reports to lack sufficient credibility, and likewise any physician's form completed based on her reports. Similarly, the Board acknowledges a January 2021 letter from a social worker at CVHS, who wrote the Veteran was under her care for behavioral health treatment since 2018, and that the Veteran has experienced anxiety regarding her claims pending with VA, and due to trauma experienced during the pendency of her claims as well as some homelessness. The social worker did not, however, opine as to whether the Veteran's service connected depressive disorder and PTSD affect her ability to secure and follow substantially gainful employment. While the Board acknowledges this social worker mentioned seeing the Veteran present to appointments with a cane and witnessing the Veteran lying in bed during zoom sessions, which the social worker attributed to pain, the social worker never mentioned any service connected disability. Moreover, as noted above, VA treatment records dated in 2018 show the Veteran exercising on a treadmill. Finally, in August 2020, pursuant to a Board remand, the RO requested that the Veteran provide copies of her income tax returns, or provide a completed IRS Form 4506-T. In response, the Veteran provided evidence that she did not file income tax returns for the years 2016 to 2020. For the years on appeal in this case prior to 2016, she never provided a copy of an income tax return, or a Form 4506-T. The Board finds her failure to at least complete a Form 4506-T for the tax years prior to 2016 tends to call into question her income for tax years prior to 2016. It may be that SSA and other income fell below the requirement to file a return. The Board acknowledges that she was in receipt of income from the SSA, that suggest the Veteran was not employed but does not rule out the possibility of the Veteran pursuing employment. In fact, as noted above, she reported to the November 2011 VA examiner that she last worked at a gas station in 2009, which is inconsistent with her report on her Form 21-8940 formal TDIU application, which shows her last reported employment as Reinhardt Food in December 2008. These failures to respond and inconsistencies in her reporting of her employment history also all tend to weigh heavily against her credibility in her reported employment and income history. The Board acknowledges the Veteran's orthopedic disabilities limits mobility and physical endurance and that her mental health disability results in social isolation. However, she has reported attending three years of college studies and was previously able to work in call centers, suggesting skills involving the use of telephones and computers. The Veteran is capable of leaving the home, and even if that is difficult, teleworking in positions that allow for breaks and do not involve lifting or group contact such as remote administrative work, transcriptions, and call center agent for which she was previously capable. (continued next page) Therefore, the Board finds that for the period prior to September 24, 2013, referral to the Compensation and Pension Director for extraschedular consideration of entitlement to a TDIU is not warranted, and for the period beginning on September 24, 2013, a TDIU is not warranted and the claim must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Juliano, 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.