Citation Nr: 25009136 Decision Date: 07/11/25 Archive Date: 07/11/25 DOCKET NO. 20-25 441 DATE: July 11, 2025 ORDER An evaluation in excess of 40 percent for lumbar spine disability is denied. An evaluation in excess of 30 percent for cervical spine disability is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective January 14, 2018, is granted. FINDINGS OF FACT 1. The evidence of record does not persuasively show that the Veteran's lumbar spine disability caused unfavorable ankylosis, or its functional equivalent, during any portion of the appeal period. 2. The evidence of record does not persuasively show that the Veteran's cervical spine disability caused unfavorable ankylosis, or its functional equivalent, during any portion of the appeal period. 3. The Veteran's self-employment from January 14, 2018 onward constituted marginal employment and his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for the service connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. The criteria for a disability rating in excess of 30 percent for the service connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5243. 3. The criteria for entitlement to TDIU from January 14, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from 2018 rating decisions by a Department of Veterans' Affairs (VA) Regional Office (RO). In a July 2018 rating decision, in pertinent part, the RO continued a 40 percent rating for the Veteran's lumbar spine disability, continued a 30 percent rating for his cervical spine disability, and denied a TDIU. In an April 2019 rating decision, the RO granted a TDIU from April 16, 2019. In June 2021, October 2022, and December 2023 the Board remanded this case to the Agency of Original Jurisdiction (AOJ) so that addendum opinions could be obtained. During the development, a VA examiner recommended an in-person examination. However, the Veteran notified VA that he is unable to attend an examination for health reasons. See January 2024 Correspondence. Because the Board directed the RO to obtain an examination only if necessary, and the obtained VA opinions taken together are adequate, the Board finds that the remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2025, the Veteran waived his right to have the AOJ review, prior to Board review, evidence added to his claims file since the most recent supplement statement of the case (SSOC). Increased Rating Disability evaluations are determined by the application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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. Consideration must 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). 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 provisions of 38 C.F.R. §§ 4.40 and 4.45 permit consideration of ankylosis ratings if a Veteran's functional loss is the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Rating Criteria for Diseases and Injuries of the Spine The RO has characterized the Veteran's lumbar spine disability as intervertebral disc syndrome (IVDS) with left posterolateral L5-S1 disc herniation and has evaluated that disability under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5242-5243. The RO has characterized the Veteran's cervical spine disability as ankylosing spondylitis with IVDS and has evaluated that disability under 38 C.F.R. § 4.71a, DCs 5010-5243. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, for the lumbar spine disability, DC 5242 provides a rating for degenerative arthritis of the spine. The Veteran's cervical spine disability, DC 5010 provides a rating for traumatic/post-traumatic arthritis. For both disabilities, DC 5243 provides a rating for IVDS and notes to evaluate IVDS either under the General Formula or under the IVDS Formula, whichever results in higher evaluation. As a preliminary matter the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria from that date. VA will apply the rating criteria that is more favorable to the Veteran from the effective date of the change. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or, when applicable, the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). While the diagnostic criteria dealing with degenerative arthritis of the spine and IVDS were updated with the new regulations, the rating criteria of the General Formula and IVDS Formula did not change under the new regulations. See 38 C.F.R. § 4.71a, DC 5235-43 (2021). As such, the rating criteria for the Veteran's cervical and lumbar spine conditions are unchanged. Under the relevant rating criteria of the General Formula, a 30 percent disability rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A rating of 100 percent is warranted for a disease or injury for the spine with unfavorable ankylosis of the entire spine. Id. 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. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral upper and lower extremity radiculopathy and the lay and medical evidence of record does not support a finding that the Veteran has any other neurological abnormality associated with his cervical or lumbar spine disabilities. 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. at Note (6). An evaluation based on ankylosis may be warranted under the General Rating Formula if a claimant's functional loss is consistent with that contemplated by ankylosis-in other words, if it is the functional equivalent of ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. 1. Entitlement to an evaluation higher than 40 percent for lumbar spine disability 2. Entitlement to an evaluation in excess of 30 percent for cervical spine disability The appeal period before the Board stems from the Veteran's January 14, 2018, Intent to File, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400 (o)(2). Private treatment records show that in September 2017, the Veteran reported severe pain in the lower back and neck. He had more difficulty with standing, walking, bending, sitting, getting up from a sitting position. In December 2017, he reported significant pain in the low back and neck, limited range of motion (ROM), and difficulty with all activities of daily living (ADL)s. On physical examination for the lumbar spine, flexion was limited to 15 degrees, and extension to 5 degrees, lateral flexion to 5 degrees and extension to 0 degrees. On physical examination for the neck, flexion was limited to 5 degrees, extension to 0 degrees, lateral flexion under 5 degrees, right rotation 10 degrees and left rotation to 5 degrees. In January 2018, the Veteran wrote that his low back condition had progressively worsened and had difficulty walking, going up and down steps, sitting, and getting out of bed each morning. See January 2018 Correspondence. A January 2018 letter from Dr. G. indicated that the Veteran has low back pain and neck pain with limited ROM and pain in all ROMs. He stated that the Veteran had "Difficulty even putting eye drops in for he cannot extend the neck at all." Dr. G. added that the Veteran is limited in his activities, has difficulties doing ADLs, and that he remains totally disabled due to his neck and back. See January 2018 Medical Treatment Record - Non-Government Facility. Private treatment records from February 2018 show that the Veteran reported increased pain with left sciatica. He had been unable to work part time for several days. On physical examination for the lumbar spine flexion was to 15 degrees, and extension to 0 degrees. On physical examination for the neck, ROM was noted as flexion to 5 degrees, extension to 0 degrees, lateral flexion under 5 degrees, right rotation 10 degrees and left rotation to 5 degrees. In March 2018, the Veteran underwent a VA examination addressing his service-connected lumbar spine disability. The Veteran reported difficult time walking, burning and constant pain, rated 9/10, numbness, tingling, paresthesia in the left lower extremity. He reported experiencing flare-ups described as unable to get out of bed in the morning, and lifting his left leg increases pain to the back at all times, with severity of 10 out of 10. He also described functional loss as being unable to bend, to get dressed on his own and at times need help getting out of bed. The VA examiner noted the Veteran's initial ROM of the thoracolumbar spine as: forward flexion to 0 to 40 degrees, extension 5 to 10 degrees, right and left lateral flexion and rotation 0 to 15 degrees. The examiner noted that the Veteran was unable to perform certain ADLs such as putting on shoes, bending, walking, and standing for greater than one hour. There was objective evidence of pain in all ROM, causing functional loss. There was evidence of pain with weight bearing. The VA examiner noted the Veteran was not able to perform repetitive use testing with at least three repetitions. The examiner could not describe additional ROM loss without resorting to speculation because "there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The Veteran had muscle spasm and guarding resulting in abnormal gait or abnormal spine contour. Additional factors noted by the examiner were less movement than normal, weakened movement, deformity, disturbance of locomotion, interference with sitting and standing. The examiner added that the Veteran had frequent spasm leading to poor posture and slow movement. The examiner noted the Veteran does not have ankylosis of the spine. He had IVDS without any episode of acute signs or symptoms due to IVDS that required bed rest or treatment prescribed by a physician in the past 12 months. He used a brace regularly for support. The examiner noted the impact of the condition was that the Veteran was unable to get dressed, bend, or lift any object. The examiner noted that the Veteran had lost 2 to 4 weeks of work time in the last 12 months. In March 2018, the Veteran underwent a VA examination addressing his service-connected cervical disability. The Veteran reported constant pain, rated 8/10, stiffness, feeling like neck is pulling to right, left arm pain numbness, tingling, atrophy and paresthesia. His dominant hand is the right. He reported experiencing flare-ups described as feeling like the neck is pulling entire body to the right side. He also described functional loss as unable to get out of bed and unable to get dressed. The examiner noted that Veteran was unable to perform ROM testing because "Veteran neck pain is severe, neck is stiff and has ankylosis." Pain was noted on exam on rest/non-movement, and was exhibited in all ROM. There was evidence of pain with weight bearing and objective evidence of pain in entire neck, with 10/10 severity. The examiner could not describe in terms of ROM without resorting to speculation, because "there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The Veteran has muscle spasm and guarding resulting in abnormal gait or abnormal spine contour. Other additional factors noted by the examiner were less movement than normal, weakened movement, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing. The examiner added that the Veteran had entire left side with decrease movement, weakness, neck stiffness pulling entire left side to right (abnormal posture and gait). The examiner noted the Veteran has favorable ankylosis of the entire cervical spine. He also has IVDS, without any episode of acute signs or symptoms due to IVDS that required bed rest or treatment prescribed by a physician in the past 12 months. He uses a brace regularly for support. The examiner noted the impact of the condition was that the Veteran is unable to perform certain ROM of the neck, unable to lift head up or unable to head/neck in position for prolong time. Feel like neck pulling entire body to right, dizziness and constant pain. The examiner noted that the Veteran had lost more than 5 weeks of work time in the last 12 months, confirmed in medical records. Private treatment records from June 2018 show that the Veteran reported increased back spasm and limited ROM. The examiner noted difficulties with standing erect and difficulties working, and that he was basically home and not working. On physical examination for the lumbar spine flexion was limited to 10 degrees, and extension to 5 degrees, lateral flexion to 5 degrees with antalgic gait. On physical examination for the neck, ROM was noted as flexion to 5 degrees, extension to 0 degrees, lateral flexion under 5 degrees, right rotation 10 degrees and left rotation to 5 degrees. In October 2018, the Veteran stated that walking was difficult because his body leans forward and to the right. He often trips and falls forward. In the morning, he has difficulty getting out of bed and standing and walking. After sitting, he cannot get up and is unable to mobilize. See October 2018 Notice of Disagreement. In February 2019, the Veteran underwent a VA examination addressing his service-connected lumbar spine disability. The Veteran reported pain as sharp, continuous and steady across both sides of his back even at rest, but gets more severe on movement such as walking, bending, getting up from sleeping or sitting position, turning from side to side, getting off the bed, sitting on toilet, standing, wearing clothes and tie shoelace. The pain sometimes radiates down to the left calf and foot, causing burning/tingling sensation. He reported radiating sharp pain across the back and down the left leg and foot, associated with numbness. He did not report experiencing flare-ups. He also described functional loss as unable to tolerate any physical activities that involve bending, lifting, weight bearing, and he was unable to walk for more than 2-3 blocks without resting in between. On examination, forward flexion was limited to 5 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 0 degrees, right lateral rotation to 15 degrees and left lateral rotation to 0 degrees. Pain was noted on examination in all ROM, causing functional loss. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation. The VA examiner noted the Veteran was not able to perform repetitive use testing with at least three repetitions due to fear of pain. The examiner could not describe additional ROM loss without resorting to speculation because "there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The Veteran has muscle spasm and guarding resulting in abnormal gait or abnormal spine contour. Additional factors noted by the examiner were less movement that normal, described as "no or restricted movement or ROM at waist level due to thoracolumbar spine disorder"; deformity, described as "stiff spine on cervical and thoracolumbar region with NO to extreme limited ROM, pain and numbness sensation"; instability of station, described as "unstable midline spine with curvature or bending towards right side of body"; disturbance of locomotion, interference with sitting and standing, described as needing assistance with sitting down and standing up from sitting position, and standing up straight. The examiner added that the Veteran had frequent spasm leading to poor posture and slow movement. The examiner noted the Veteran does not have ankylosis of the spine. He had IVDS, without any episode of acute signs or symptoms due to IVDS that required bed rest or treatment prescribed by a physician in the past 12 months. No assistive devices were noted. There was no functional impact. The examiner remarked "the physical assessment reflects the diagnosis as pain is a more aligned to left lower leg and calf, and got worse with certain body movement, pain with sitting and standing, and decreased reflexes on left lower extremity. There is no involvement of bladder or bowel. Veteran also noted with lumbar radiculopathy, a.k.a sciatica radiculopathy which is secondary to nerve irritation caused from adjacent structure thoracolumbar disc herniation or bulging. This causes lower back pain and radiating sharp pain down the lower leg along with numbness sensation. Otherwise, Ankylosis of lower back and bilateral lower legs is completely rule out due to lack of physical evidence." In February 2019, the Veteran underwent a VA examination addressing his cervical spine disability. The Veteran reported current symptoms of stiff and rigid neck spasm pain mixed with sharper pain on movement. He did not report flare-ups. He also described functional loss as unable to turn to left side and limited full ROM of neck toward left side. The VA examiner noted the Veteran's initial ROM of the cervical spine as: forward flexion to 10 degrees, extension to 5 degrees, right and left lateral flexion to 0 degrees, right lateral rotation to 5 degrees and left lateral rotation to 0 degrees. Pain was noted on examination causing functional loss, Pain noted on all ROMs. There was evidence of pain with weight bearing. There was evidence of moderate pain located at posterior cervical. The VA examiner noted the Veteran was not able to perform repetitive use testing with at least three repetitions due to fear of pain. The examiner could not describe in terms of ROM without resorting to speculation, because "there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The Veteran did not have muscle spasm or guarding. No additional factors contributed to the condition. The examiner noted the Veteran has favorable ankylosis of the cervical spine. He also has IVDS, without any episode of acute signs or symptoms due to IVDS that required bed rest or treatment prescribed by a physician in the past 12 months. No assistive device was noted. The examiner noted that the cervical spine disability did not have functional impact. The examiner remarked "the Veteran's physical examination of cervical spine and neck region depicts pain and stiffness across and down the neck, and radiation of pain down to the left shoulder accompanied with numbness. The posterior neck cervical spine area is very rigid with extreme limited ROM. [V]eteran also noted with stooped-over posture with walking and sitting. However right side pain has very minimal pain and no abnormal testing noted. Left side in shoulder/neck area is more involved and affected. The diagnosis of ankylosing spondylitis is very early on stage since symptoms are very mild." In an October 2019 VA examination for the lumbar spine disability, the Veteran reported current symptoms of constant and steady pain throughout the day across the lower back, with intermittent episodes of radiating pain down the hips and legs, (left more than right), and numbness and tingling on the left leg. He reported receiving his 3rd dose of a cortisone steroid injection two weeks prior. The Veteran reported flare-ups 2 times a week where he was unable to get up from bed in the morning with back pain, with stiffness and spasm down the thigh and legs. The pain is so severe he has to lay down and is unable to get off bed. These flare-ups last about 30 minutes to a few hours. Functional loss was described as not able to tolerate any physical activities such as bending, lifting, stretching up, or any weight bearing. Prolonged sitting, standing, walking, getting up from sitting position and getting off the bed would worsen the pain. On examination, forward flexion was limited to 10 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, right lateral rotation to 15 degrees and left lateral rotation to 5 degrees. Pain was noted on examination in all ROM, causing functional loss. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation. The VA examiner noted the Veteran was not able to perform repetitive use testing with at least three repetitions due to fear of pain. The examiner noted that pain, fatigue, weakness, and lack of endurance caused functional loss. They could not describe additional ROM loss and noted that there was no basis to offer additional losses of function or motion with respect to repeated use over time. The examination was not conducted during a flare-up. The examiner noted that pain, weakness, and lack of endurance caused functional loss. They could not describe additional loss in terms of ROM. There was guarding and muscle spasm resulting in abnormal gait or abnormal spine contour. Additional factors contributing to the lumbar spine disability are less movement than normal, as he is very restricted and limited with any movements at waist level due to severe lower back pain with radiculopathy symptoms, deformity, stiffness and spasm pain at cervical and lumbar region with extremely limited ROM, pain and numbness, and interference with sitting and standing. He needs assistance with sitting down or standing up from a sitting position or vice versa and is not able to stand straight or prolong standing due to underlying spine pathology. There is no ankylosis of the spine. He also has IVDS, without any episode of acute signs or symptoms due to IVDS that required bed rest or treatment prescribed by a physician in the past 12 months. No assistive devices were noted. The Veteran's lumbar spine condition impacts his ability to work. The Veteran lost 0 to 1 week of work time in the last 12 months. The examiner noted that the Veteran retired 5 years prior due to severe neck and back pain, which limits him from working due to severe limitation of ROM at the neck, shoulder, and lower back. In an October 2019 VA examination for the cervical disability, the Veteran reported current symptoms of a constant mixture of both sharp and dull pain with shooting radiating down the upper shoulder, arms and hands, left side more than right side, with intermittent numbness and tingling. He reported flare-ups "a few times a week" in the morning, he was unable to get up from the bed and "takes a while until I was able to start moving with the help of my wife." He also reported not being able to turn his neck towards the left side at all and that his neck was very stiff and rigid. On examination, his cervical spine was limited to flexion 15 degrees, extension 5 degrees, right lateral flexion 10 degrees, left lateral flexion 5 degrees, right lateral rotation 5 degrees, left lateral rotation 0 degrees. Pain was noted on exam in all ROMs. There was pain with weight bearing. Pain and tenderness on palpation was moderate in posterior region of the neck and cervical spine. The VA examiner noted the Veteran was not able to perform repetitive use testing with at least three repetitions due to "suboptimal effort". The examiner noted that pain, fatigue, weakness, and lack of endurance cause functional loss. They could not describe in terms of ROM and noted that there was no basis to offer additional losses of function or motion with respect to repeated use over time. The examination was not conducted during a flare-up. The examiner noted that pain, fatigue, weakness, and lack of endurance cause functional loss. They could not describe in terms of ROM. There was no guarding or muscle spasm. The examiner noted that the Veteran did not have ankylosis or IVDS. The Veteran's cervical condition impacts his ability to work. The Veteran lost 0 to 1 week of work time in the last 12 months. The examiner noted that the Veteran retired in 2014 due to severe pain and limitation with movement at his neck, shoulder and lower back area. In the February 2020 VA examination for the back, the Veteran reported pain along the lower back that is constant, sharp, and 5/10 in intensity on average. He reported intermittent shooting pains into the buttocks and down the posterior left leg into the foot, numbness and weakness in the left foot. He also reported difficulty sitting because he cannot lean towards the left side and standing also is difficult due to being hunched over. He denied bowel or bladder dysfunction. He uses a walker. He takes Vicodin with some pain relief. The Veteran did not report flare-ups. Functional loss was described as difficulty standing or walking for prolonged periods or bending forward. The Veteran cannot stand or walk for more than 5 minutes. The examiner noted that the Veteran worked as a chiropractor but could not go back to work due to physical demands. The above impairments impact occupational and employment activities. The Veteran needed help from his wife with driving and ADLs. On examination, forward flexion was limited to 45 degrees, extension to 0 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. Pain was noted on examination in forward flexion and extension, causing functional loss as he has difficulty bending forward. There was evidence of pain with weight bearing. There was no objective evidence of localized pain. The Veteran was able to perform repetitive use testing with at least three repetitions. On examination, forward flexion was limited to 40 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. Factors causing functional loss are pain and weakness. The Veteran has muscle spasm resulting in abnormal gait. There was no guarding. Additional factors contributing to disability are disturbance of locomotion, interference with sitting, and interference with standing. No IVDS was noted. The Veteran uses a walker occasionally. Functional impact was described as "Veteran cannot stand or walk for more than 5 minutes. Uses a walker for ambulation due to hunching over. Veteran worked as a Chiropractor but cannot go back due to physical demands. The above impairments impact occupational and employment activities. Needs help from wife with driving and ADLs." In its June 2021 remand, the Board found that VA examiner must assess whether the Veteran's symptoms pertaining to the cervical and lumbar spine disabilities resulted in the functional equivalent of ankylosis of either segment of the spine, or the entire spine, during a flare-up. In a July 2021 medical opinion, the VA examiner, an obstetrics and gynecology specialist, acknowledged that the Veteran's limitation of motion was largely due to pain, but did not address whether it resulted in the functional equivalent of ankylosis. In October 2022, the Board remanded the appeal for a supplemental opinion as to whether the Veteran's ROM of the lumbar spine, cervical spine, and entire spine is so diminished as a result of pain that it is the functional equivalent of ankylosis. In a November 2022 VA examination conducted by video telehealth, the Veteran reported that when he wakes up in the morning, he is stuck/bent to the left and it takes a few hours to straighten up. He had difficulty sleeping due to back pain, needs assistance with dressing especially with shoes, socks and pants, and uses a walker to walk. He reported urinary and fecal frequency but denied incontinence or leakage. He cannot do any lifting or bending or carry anything. He reported flare-ups causing increased pain and functional loss. The examiner noted that the Veteran did not have ankylosis of the spine. However, in a separate opinion, the examiner opined that the Veteran's limitation of ROM is equivalent to ankylosed spine. In a December 2022 addendum opinion, the examiner noted that the limitations of ROM are the equivalent to ankylosed lumbar, cervical and entire spine. In its December 2023 remand, the Board found that the claims file did not contain medical findings or opinions as to whether each of those functional equivalents of ankylosis were functional equivalents of favorable ankylosis or unfavorable ankylosis. The Board requested a supplemental opinion. In June 2024 medical opinions, the VA examiner reviewed August 2015 treatment records, an August 2019 MRI, and an October 2021 treatment record. The examiner determined that the physical findings and MRI did not support favorable or unfavorable ankylosis, and as such there was a lack of evidence of a functional equivalent to favorable or unfavorable ankylosis of the cervical spine, the lumbar spine, or the entire spine. Pain and stiffness are only reproduced at extremes of extension, flexion, or bending, which would not be expected had the Veteran had ankylosis of the cervical or thoracolumbar spine. Moreover, the August 2019 MRI did not show findings indicative of ankylosis. In an October 2024 addendum, the examiner reviewed treatment records going back to 2014 and noted that although the ROM was very limited, there is no evidence of ankylosis of the cervical spine or lumbar spine pursuant to the definition of ankylosis in the rating criteria. Since there is movement in the most recent exam, they opined that the Veteran does not have ankylosis of the cervical spine or lumbar spine. In November 2024 addendum opinions, a different examiner opined that it is "less than likely" that the Veteran has a diagnosis that is functional equivalent to favorable or unfavorable ankylosis of the thoracolumbar spine, cervical spine, and entire spine. The rationale provided was that although the Veteran was given a diagnosis of ankylosis, there was no imaging or treatment notes to support it. Also, the November 2022 examiner marked "no" for ankylosis. The examiner could not provide an opinion without resorting to speculation because an in-person examination would provide "accurate/appropriate findings with up to date imaging." The Veteran's representative contends that the November 2024 examiner did not address whether the Veteran's ROM is so diminished as a result of pain that it is the functional equivalent of favorable or unfavorable ankylosis. He maintains that although the Veteran's findings are not typical of ankylosis, he experiences functional loss due to pain that is comparable to that experienced by a person with immobility of part of the spine as he has difficulty standing, walking, bending, and lifting due to pain. See May 2025 Appellate Brief. The representative requests that the Board obtain an opinion from an orthopedic specialist. As previously noted, the Board has requested additional medical opinions to determine whether there is the functional equivalent to favorable or unfavorable ankylosis of the thoracolumbar spine, the cervical spine, and the entire spine. The Board finds that the opinions in the file, when considered together, provide sufficient detail that addresses the Board's questions. As such, the Board finds the above development substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for the Veteran's lumbar spine disability at any time during the rating period. As mentioned above, for a disability rating in excess of 40 percent to be warranted, the evidence of record would need to support a finding that the lumbar spine disability has manifested with unfavorable ankylosis of the entire thoracolumbar spine or its functional equivalent at any time during the appeal period. The Board finds that the Veteran's disability picture more approximately manifests as being analogous to favorable ankylosis of the lumbar spine, which warrants a 40 percent rating. Here, the totality of the available evidence does not support finding such level of impairment, including consideration of increased pain during flare ups or after repeated use over time. Throughout the period on appeal, the Veteran's lumbar spine disability has manifested with significant limitation of motion due to pain. The physical examinations during the appeal period show forward flexion limited to 5 degrees at worse, but most recently showed forward flexion limited to 40 degrees, even during repetitive use. However, the level of impairment associated with the significant limitation of motion and pain is contemplated in the 40 percent rating already assigned. Moreover, VA's definition of unfavorable ankylosis requires difficulty walking due to a limited line of vision, restrictions with opening the mouth or chewing, issues with swallowing (dysphagia), limitations with breathing, dyspnea, issues with his diaphragm resulting in breathing issues, pressure over the abdomen or ribs resulting in gastrointestinal symptoms. Such findings, or analogous findings, are simply not shown by the pertinent evidence as described above. Rather, the available evidence shows that the Veteran's difficulty walking is due to pain and limited ROM and not due to a limited line of vision. Private treatment records show the Veteran has denied dyspnea or dysphagia as noted in his private treatment records. See Medical Treatment Record - Non-Government Facility [received March 23, 2023]. While the Veteran may experience some periods of immobility, the Board does not find that these periods are the functional equivalent of the Veteran's thoracolumbar spine being in a fixed position with the additional, debilitating symptoms that are required to accompany unfavorable ankylosis as contemplated by the rating criteria. Moreover, there is no contention or indication that he is entitled to a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. While the Veteran's diagnosis of IVDS has generally been confirmed by VA examinations during this period, he has not been found to have incapacitating episodes that require bed rest as prescribed by a physician, much less the four to six weeks incapacitation that is required for the next highest disability rating of 60 percent at any point during the appeal period. The Board finds that indeed the Veteran's experiences the functional equivalent of favorable ankylosis. However, unfavorable ankylosis requires specific criteria as mentioned above which have not been shown on the Veterans record at any time during the appeal period. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for lumbar spine disability. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. The Board also finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for the Veteran's cervical spine disability at any time during the rating period. As previously noted, for a disability rating in excess of 30 percent to be warranted, the evidence of record would need to support finding the cervical disability has manifested with unfavorable ankylosis or its functional equivalent at any time during the period for consideration. Here, following review of the available evidence in the claims file, the Board finds the criteria for a disability rating in excess of 30 percent for the cervical spine disability for the period for consideration are not met. Notably, the totality of the available evidence shows that during the period for consideration, the cervical spine disability has manifested with significant limitation of motion. Several examiners have noted diagnosis of favorable ankylosis of the cervical spine. However, at no time has the Veteran been diagnosed with unfavorable ankylosis of the entire cervical spine. Moreover, at no time has the available evidence shown or suggested the cervical spine resulted in additional complications such as those listed in Note (5) to the General Rating Formula. As such, the criteria for a disability rating in excess of 30 percent for the cervical spine disability are not met. Here, the totality of the available evidence does not support finding such level of impairment, including consideration of flare episodes or periods following repeated use over time. Particularly, throughout the period on appeal, the Veteran's cervical spine disability has manifested with significant limitation of motion, due to pain. However, the level of impairment associated with the significant limitation of motion and pain has already been considered and is contemplated in the 30 percent rating already assigned for this period. The physical examinations during the appeal period show forward flexion limited to 5 degrees at worse. While the Veteran reported flares and additional functional limitations of the neck or cervical spine due to pain, the available evidence also shows that during the period for consideration, these flares and additional functional limitations did not involve the cervical spine being almost stuck or almost fixed in a bent position (either flexion or extension or in a position other than 0 degrees). Moreover, to the extent the Veteran's cervical spine has manifested with severe limitation of motion during the period on appeal, the available evidence does not support finding that the disability has manifested with such level of functional impairment so often and/or for so long that the Veteran also experienced limitations with walking due to a limited line of vision, restrictions with opening the mouth or chewing, issues with swallowing (dysphagia), limitations with breathing, dyspnea, issues with his diaphragm resulting in breathing issues, pressure over the abdomen or ribs resulting in gastrointestinal symptoms. While the Veteran may experience some periods of immobility, the Board does not find that these periods are the functional equivalent of the Veteran's cervical spine being in a fixed position with the additional, debilitating symptoms that are required to accompany unfavorable ankylosis as contemplated by the rating criteria. Rather, the available evidence shows that throughout the appeal period, the disability has manifested with a level of functional impairment that more closely approximates the impairment contemplated by the criteria for a 30 percent rating (such as favorable ankylosis). For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 30 percent for the cervical spine disability. As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply. 3. Entitlement to TDIU prior to April 16, 2019. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The Court defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). See Arline v. McDonough, 34 Vet. App. 238 (2021) (Bartley, J., dissenting in part). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of 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. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. The sole fact a Veteran is unemployable or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). "A high rating in itself is recognition the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment." Id. VA may not consider a veteran's advancing age and non-service-connected disabilities when determining entitlement to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose, supra. 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. While the question of unemployability is ultimately a legal determination for the trier of fact, as opposed to a medical finding, the medical evidence of record is probative as to the Veteran's condition and how it affects employability. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks entitlement to a TDIU prior to April 16, 2019. The Veteran's unemployability was raised during his appeal for increased ratings for his cervical and lumbar spine disabilities, and he filed that claim on January 14, 2018. Thus, the Board will consider entitlement to a TDIU as of this date. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). From January 14, 2018 to April 16, 2019, the Veteran was in receipt of a 60 percent for radiculopathy of all radicular groups, left upper extremity, 40 percent for lumbar spine with IVDS, 40 percent for radiculopathy of sciatic nerve left lower extremity; 30 percent for cervical spine with IVDS; 20 percent for radiculopathy of the femoral nerve, left lower extremity; and noncompensable ratings for radiculopathy of upper radicular groups, right upper extremity, and radiculopathy of the sciatic nerve, right lower extremity. thereby satisfying the schedular rating criteria for a TDIU. See 38 C.F.R. § 4.16(a). His combined disability rating is 90 percent since January 14, 2018. As such, the Veteran has met the percentage requirements for consideration of a schedular TDIU under 38 C.F.R. § 4.16(a). The Board finds that a TDIU is warranted, effective January 14, 2018, because his self-employment constituted marginal employment and his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. In April 2018, the Veteran called VA and notified that in the last 12 months he had lost 1560 hours of employment due to his service connected disabilities. He informed and gross income of $49,326 in the last 12 months. In a December 2019 statement, the Veteran stated that he closed his office in April 2019 due to his inability to walk, stand, and sit. In the October 2018 VA Form 21-8940, the Veteran noted total gross earnings of $23,574 from January to September 2018. In the January 2020 VA Form 21-8940, the Veteran stated that he was self-employed as a chiropractor from January 5, 2018 to April 15, 2019. He noted that his highest gross earnings per month in 2018 were $2,426, working 10 hours per week; and $1545 in 2019, working 8 hours per week. The Veteran noted total gross earnings of $4,181 in 2019. The income Poverty Threshold for the years 2018 and 2019 was $12,140 and $12,490. The Veteran therefore earned more than "marginal income," as his income exceeded the poverty thresholds for one person for the year 2018. However, marginal income can be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. The Board finds the Veteran's employment constitutes marginal employment even though he earned above the poverty thresholds for one person. See 38 C.F.R. § 4.16(a). In his January 2020 VA Form 21-8940, the Veteran stated that he had to stop working on April 15, 2019 as he was unable to walk, sit, or stand due to the severity of his pain in neck, back, left leg and left arm. He also stated that he had to close his office from January 30, 2018 to March 5, 2018 and again from September 13, 2018 to September 17, 2018. His highest education was 4 years of college and he does not have any other education or training. See January 2020 VA Form 21-8940. In October 2023, the Veteran's representative argued that the Veteran's chiropractic work should be considered marginal employment performed in a protected environment as he was the sole proprietor and singly responsible for his schedule, the number of clients seen, the hours of operation, and accommodations as his symptoms required. See October 2023 Brief. The ability to work sporadically is not substantially gainful employment. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). For pension cases, VA listed examples of what can constitute marginal employment, including a self-employed farmer, a small business owner, a contractor, a person who works odd jobs, or a person employed at less than half the usual remuneration (payment received for usual employment). See 38 C.F.R. § 4.17(a). The Board finds that the Veteran's self-employment is analogous to those listed in § 4.17(a), and constitutes marginal employment. Marginal employment can also exist when employed in a protected environment such as a family business or sheltered workshop. See 38 C.F.R. § 4.16(a). The term "protected environment" is not defined by regulation. See Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Factors such as the type and extent of accommodation received, the employer behavior or intent toward the Veteran, and whether the Veteran's income is significantly above the poverty threshold can be considered. See Arline v. McDonough, 34 Vet. App. 238 (2021) (Bartley, J., dissenting in part). In LaBruzza v. McDonough, the Court defined "employment in a protected environment" as a "lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." 37 Vet. App. 111, 123-24 (2024). The Court held that the "protected-environment inquiry is highly factual by its nature" and "no fact or factor should be dispositive," including income, disability accommodations, and employer intent. Id. at 124. The Court emphasized the income must be "relatively low" to qualify as "in a protected environment." Id. Considering the facts of this case as applied to the governing case law, the Board finds that the Veteran's employment constituted work in a protected environment. Specifically, the Veteran's income for 2018, while exceeding the poverty threshold, was less than half his usual earnings. He had to reduce his schedule, his hours of operation, and the clients he could accommodate due to his service connected disabilities. Accordingly, the Board finds that the Veteran meets the criteria for the economic component for entitlement to a TDIU. The record shows the Veteran has difficulties walking, standing, sitting, and bending forward. He needs help from his wife with driving and activities of daily living. When viewed as a whole, the probative evidence persuasively supports a finding that for the entire appeal period under consideration, the Veteran was not capable of substantially gainful employment as a result of his service-connected disabilities or at the least contributed only to marginal employment. The Veteran's service-connected disabilities precluded him from engaging in any type of gainful employment. Thus, entitlement to a TDIU due to service-connected disabilities is warranted effective January 14, 2018, the date of intent to file the claim to April 16, 2019 (date at which he is already in receipt of TDIU). 38 C.F.R. § 4.16. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Romero, E 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.