Citation Nr: 22016141 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-02 911 DATE: March 21, 2022 ORDER Entitlement to a 20 percent disability rating for the Veteran's back disability is granted for the entire appeal period, beginning August 31, 2016. Prior to November 1, 2021, entitlement to an initial disability rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy is denied. Beginning November 1, 2021, a 20 percent disability rating for the Veteran's right lower extremity radiculopathy is granted. Prior to November 1, 2021, entitlement to an initial disability rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy is denied. Beginning November 1, 2021, a 20 percent disability rating for the Veteran's left lower extremity radiculopathy is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted beginning August 31, 2016. FINDINGS OF FACT 1. At worst, the Veteran's forward flexion of the thoracolumbar spine would be 60 degrees. 2. Prior to November 1, 2021, the Veteran's right lower extremity radiculopathy manifested as mild incomplete paralysis. 3. Beginning November 1, 2021, the Veteran's right lower extremity radiculopathy manifested as moderate incomplete paralysis. 4. Prior to November 1, 2021, the Veteran's left lower extremity radiculopathy manifested as mild incomplete paralysis. 5. Beginning November 1, 2021, the Veteran's left lower extremity radiculopathy manifested as moderate incomplete paralysis. 6. The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation beginning August 31, 2016. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability for the Veteran's back disability have been met for the entire appeal period, beginning August 31, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Prior to November 1, 2021, the criteria for a disability rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy have been not met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 3. Beginning November 1, 2021, the criteria for a 20 percent disability rating for the Veteran's right lower extremity radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 4. Prior to November 1, 2021, the criteria for a disability rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy have been not met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 5. Beginning November 1, 2021, the criteria for a 20 percent disability rating for the Veteran's left lower extremity radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 6. The criteria for a TDIU have been met beginning August 31, 2016. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from May 2007 to March 2012. The Veteran testified before the undersigned Veterans Law Judge in October 2020, and a transcript is of record. In October 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination for back disability. The Board determined the prior examination was inadequate because the examiner failed to provide an opinion concerning how his back flareups impacted his functional ability. His TDIU claim was remanded as it was inextricably intertwined with his increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran received a new VA examination for his back disability in November 2021. The Board finds this examination adequate assessed the severity of his back disability and specifically addressed the Veteran's flareups. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) The Veteran's attorney noted the inadequacy of the December 2016 VA examination at the Board hearing. As noted above, the Board remanded for a new VA examination to correct the error. Additionally, the Board acknowledges the Veteran's attorney made a general argument regarding the VA's duty to assist and duty to notify. However, neither the Veteran nor his attorney have advanced any specific argument regarding either duty beyond noting the inadequacy of the December 2016 back examination. 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 Board also remanded the Veteran's claims for service connection for a neck disability and bilateral upper extremity radiculopathy, and these were granted in a November 2021 rating decision and are thus no longer before the Board. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Back Disability The Veteran's back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this Diagnostic Code was not changed. Under this Diagnostic Code, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. "Unfavorable ankylosis" is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic 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."). The December 2016 VA examination noted that the Veteran had Intervertebral Disc Syndrome (IVDS), and ratings under Diagnostic Code 5243 can also be considered. 38 C.F.R. § 4.71a. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. The medical and lay evidence of record consistently has shown that the Veteran's IVDS has not required bedrest prescribed by a physician. Therefore, the Board finds that rating higher than 10 percent is not warranted under Diagnostic Code 5243. The Veteran received a VA examination in December 2016. Although the range of motion measurements of this examination are inadequate, as stated in the October 2021 remand, the Veteran's lay statements and the discussion of non-range of motion symptoms are adequate. At the examination, the reported back pain that radiated down to his legs. He described the pain as stabbing, sharp, and burning. His back pain was aggravated by increases in activity, prolonged walking, and prolonged standing. These activities also caused flareups which the Veteran reported led to a decrease in his range of motion. He did not have guarding, muscle spasms, or ankylosis. Upon testing, his active range of motion was flexion was to 90 degrees, extension to 17 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner opined that this abnormal range of motion did not contribute to functional loss, but the Veteran experienced pain on testing. After repetitive-use testing, the Veteran experienced a slight change in his range of motion; his extension decreased to 15 degrees and right lateral flexion to 10 degrees. The examiner did not opine as to how the Veteran's range of motion or functional ability would be impacted by flareups or after repetitive use over time. These results are inadequate, and are also less favorable than the results from November 2021, except for bilateral lateral rotation, which was normal in November 2021. However, lateral rotation is not one of the planes of motion considered in the 40 percent criteria. A September 2017 VA treatment record noted that his lumbar flexion and extension were "full." The Veteran also testified about his back symptoms at his October 2020 Board hearing. He reported having flareups twice a week especially after doing certain activities like household chores and playing with his nieces and nephews. He testified that his house has 3 flights of stairs and after a long day using the stairs was difficult. He also testified that he has trouble lifting items without pain. His most recent VA examination was in November 2021. He stated his current symptoms included pain, limited range of motion, numbness, and tingling. He had flareups 3 to 4 times per week which he rated as moderate. Like he noted in the previous examination, his flareups were precipitated by prolonged standing and walking. His range of motion decreased from his previous VA examination. Upon testing, his active range of motion was flexion was to 60 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. He had pain with flexion and extension. Passive range of motion was tested, and the examiner specifically found that it was the same as his active range of motion. The Veteran experienced pain with both active and passive flexion and extension. He also had pain on weight-bearing. There was no additional loss in his range of motion after repetitive-use testing after three repetitions. Pain impacted the Veteran after repeated use over time and during flareups, but the examiner found that he did not experience any change in his range of motion. He continued to have no guarding, muscle spasms, ankylosis, or atrophy. The Board finds an increase to 20 percent is warranted for the Veteran's back disability rating for the entire appeal period. The October 2016 examination's range of motion measurements were found to be inadequate in the Board's October 2021 remand, and therefore they will not be assigned probative weight, and the November 2021 results will be applied for the entire appeal period. His forward flexion was, at worst, 60 degrees; this range of motion was noted by the November 2021 VA examiner. This range of motion is contemplated by a 20 percent rating. At no point during the appeal period did the evidence demonstrate that Veteran had forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, as required for a 40 percent rating. Additionally, the record does not show that he has the functional equivalent of ankylosis to meet the criteria for a 40 percent rating. He retains more than half his flexion and more than half of his extension. He remains able to walk even with pain. His functional impairment from pain, weakness, and lack of endurance did not create the functional equivalent of ankylosis, which is defined as the immobility of a joint in a fixed position. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Board must also consider the Veteran's functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45. While the Veteran experienced functional loss in the form of pain, difficulty walking, difficulty with prolonged standing, and difficulty engaging in household chores, these additional limitations did not cause his forward flexion to decrease to 30 degrees nor cause ankylosis as required for a 40 percent disability rating. The November 2021 examiner specifically considered how the Veteran's range of motion would be impacted by passive range of motion testing, flareups, and repetitive use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner noted pain impacted the Veteran, but there was no decrease in the Veteran's range of motion to warrant a 40 percent disability rating. Therefore, even considering the Veteran's functional loss, the Board concludes the Veteran's back disability does not equate to more than the disability picture contemplated by the 20 percent rating already assigned. 38 C.F.R. § 4.71a. The Veteran's neurological complications are addressed below. 2. Left and Right Lower Extremity Radiculopathy The Veteran's right and left lower extremity radiculopathy are rated under Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. At the December 2016 VA back examination, the examiner noted the Veteran's muscle strength, reflex, and sensory exams were normal. He did not have any muscle atrophy. The Veteran had moderate intermittent pain in his right lower extremity and mild intermittent pain in his left lower extremity. His paresthesias and/or dysesthesias and numbness was rated as mild for both extremities. The examiner rated both his right and left lower extremity radiculopathy disabilities as mild. Prior to November 1, 2011, the Veteran's bilateral lower extremity radiculopathy is more accurately described as mild incomplete paralysis in each leg, but no higher. First, it is wholly sensory. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran's radiculopathy symptoms are wholly sensory. He has pain, numbness, and parasthesia and/or dysesthesias. He does not have skin changes. Nonsensory impairment can include symptoms such as "a reflex abnormality, [or] weakness or muscle atrophy." Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). The VA examinations show that his symptoms do not include abnormal reflexes, weakness, or muscle atrophy. Additionally, the VA treatment records provide evidence against there being nonsensory impairment. In October 2016, September 2017, and May 2018, his strength and reflexes were normal in both lower extremities. In a November 2017 VA treatment record, there was a specific finding of no atrophy. In a June 2018 VA treatment record, his strength was normal in both lower extremities. In an October 2018 VA treatment record, his reflexes were normal. Second, his lower extremity radiculopathy is best characterized as mild because at his October 2016 VA examination, his sensory symptoms (intermittent pain, paresthesias and/or dysesthesias, and numbness) were described as mild in both lower extremities, except for intermittent pain which was moderate on the right. He did not have any constant pain. To be described as moderate, more of these symptoms would need to be categorized as moderate. Additionally, VA treatment records from prior to November 1, 2021 show less severe sensory symptoms. For example, in September 2017, he described his pain as a throbbing sensation but only with "occasional" episodes of tingling. Also in September 2017, his light touch and pinprick sensation were intact. In October 2018, his sensation to light touch was also intact. He did not describe his lower extremity radiculopathy symptoms at his hearing. His radiculopathy symptoms prior to November 1, 2021 show normal sensation tests for pinprick and light touch, and overall mild symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness. For the left lower extremity, one of these symptoms is described as moderate. However, the majority of the symptoms are described as mild and the sensory examination was normal. To be described as "moderate" disability in the left lower extremity, it is reasonable to conclude that more of these symptoms would be moderate and that there be some abnormal sensation test results. A rating in excess of 10 percent is denied prior to November 1, 2021. At his next back examination on November 1, 2021, he continued to report similar symptoms. He continued to test normal on the muscle strength, reflexes, and sensory examinations. He also did not have atrophy. His straight leg raising test was positive bilaterally; a positive test suggests radiculopathy. For both his right and left lower extremities his disability caused moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. He did not have constant pain. He underwent a VA peripheral nerves examination on November 1, 2021. He did not have constant pain in either lower extremity. He had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in both lower extremities. His strength and reflexes were normal as well. His sensation to light touch was normal. He did not have trophic changes. The examiner stated that the sciatic nerve was involved bilaterally and described the severity as moderate incomplete paralysis bilaterally. The Board finds that a 20 percent disability rating is appropriate for his right and left lower extremity radiculopathy beginning November 1, 2021 because all of his sensory symptoms were moderate except for constant pain, which he did not have. Because he does not have nonsensory symptoms, his rating cannot be more than 20 percent for either lower extremity. The 40 percent rating contemplates moderately severe incomplete paralysis, and for that rating, nonsensory symptoms are required. 38 C.F.R. § 4.124a. For initial rating claims and increased rating claims, "the effective date can be no earlier than the date it was factually ascertainable" that a veteran's disability was diagnosed or worsened. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015). The effective date should not be "assigned mechanically" as of the date of an examination. Id. at 224. There must be a factual basis for choosing an earlier date. November 1, 2021 is the date of the Veteran's peripheral nerves examination. However, it is not factually ascertainable when his radiculopathy became worse. As described above, his VA treatment records consistently describe normal sensation testing. At his VA treatment appointments, he did not state that his radiculopathy symptoms had gotten worse. He also did not state that they were worse at his October 2021 hearing. The information in the November 1, 2021 examination report does not allow the Board to factually ascertain when his symptoms became worse. Therefore, November 1, 2021 is the appropriate date for the assignment of the 20 percent rating. The Veteran did not have any bladder or bowel movement neurological conditions attributed to his back disability at his VA examinations. At July 2017 and October 2018 neurosurgery consults, he denied having bowel or bladder dysfunction. Additional separate ratings are not warranted. TDIU In an August 2020 rating decision, the AOJ granted a TDIU effective March 26, 2020. A TDIU claim is part of the Veteran's claim for an increased rating for his back disability because at his hearing, he stated that part of the reason he could not work was his back disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Because the TDIU was not granted for the entire appeal period of the increased rating claim, the TDIU claim remains on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has meet the schedular requirements for a TDIU for the entire appeal period. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran's service-connected major depressive disorder interferes with his employment. At his December 2016 VA examination the Veteran reported that he was unable to work as a veterinary technician because he had difficulty concentrating and experienced anxiety about being in public. Additionally, he experienced memory loss, had difficulty adapting to stressful situations, difficulty maintaining work relationships, and engaged in obsessive rituals that interfered with his routine activities. He testified at his Board hearing that he had never worked full time; he had been working part time but had to quit because of his social anxiety. The Veteran's other service-connected disabilities also interfere with his employment. Due to his neck disability and bilateral upper extremity radiculopathy, he cannot engage in work that requires fine motor skills. He also reported that he had to stop working as a veterinarian technician because of these disabilities. Furthermore, as described above his back disability and bilateral lower extremity radiculopathy disabilities negatively impact the Veteran's mobility. In his April 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran stated that he served in the military until 2011, and then he worked 20 hours a week as a veterinary technician from February 2019 to April, 2020. The Veteran was unemployed when he filed his August 2016 claim for an increased rating for his back disability. Although he was employed from February 2019 to April 2020, it was part time and he reported that he earned approximately $754 per month. This is below the poverty threshold for one person for both 2019 and 2020. Therefore his employment was marginal, which is not substantially gainful employment. Consequently, the Board finds that based on the medical and lay evidence, the Veteran's service-connected disabilities render him unemployable for the entire appeal period for his claim for an increased rating for his back disability. A TDIU is granted beginning August 31, 2016. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.