Citation Nr: 0810512 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-31 678A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a residuals of a right shoulder injury with arthritis. 2. Entitlement to a rating in excess of 20 percent for cervical spondylosis with nerve root compression. 3. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from February 1977 to March 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied entitlement to increased ratings for right shoulder and cervical spine disabilities and denied entitlement to TDIU. FINDINGS OF FACT 1. The residuals of the veteran's right shoulder injury with arthritis are manifested by pain and limitation of motion; but movement of the arm is possible beyond midway between the side and the shoulder level, and there is no malunion or nonunion of the clavicle, scapula, or humerus. 2. Throughout the entire claims period, the cervical spine disability has not resulted in any incapacitating episodes necessitating bed rest prescribed by a physician. 3. Throughout the entire claims period, the veteran's cervical spine limitation of motion has been no more than moderate; with flexion to 35 degrees. 4. Throughout the entire claims period, the veteran has had at most mild incomplete paralysis of the right middle radicular group. 5. The veteran is gainfully employed, and his service- connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 20 percent for residuals of a right shoulder injury with arthritis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202, 5203 (2007). 2. The schedular criteria for rating in excess of 20 percent for cervical spondylosis with nerve root compression have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5290, 5293 (2003); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2007). 3. The veteran's cervical spine disability warrants a separate disability rating of 20 percent, but not higher, based on impairment of the right upper extremity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.14, 4.124a, Diagnostic Code 8511 (2007). 4. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In letters issued in October 2002 and May 2005, subsequent to the initial adjudication of the claims, the RO notified the veteran of the evidence needed to substantiate his claims for entitlement to increased ratings and for entitlement to TDIU. The letters also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the May 2005 letter contained a notation that the veteran should submit any evidence in his possession pertinent to the claims on appeal. In a recent decision, The United States Court of Appeals for Veterans Claims (Court) held that in an increased- compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating such as a specific measurement or test results, the Secretary must provide at least general notice of that requirement to the claimant. Vazquez-Flores v. Peake, No. 05-0355, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008). The increased rating issues currently before the Board are entitlement to increased ratings for right shoulder and cervical spine disabilities. The relevant rating criteria, as outlined below, provide for disability evaluations based on limitation of motion, instability, and other orthopedic symptoms. Some of these diagnostic codes do require specific measurements. The veteran was no specifically told about this fact in a VCAA letter. Any notice error will be presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication and persuade the Court that the purpose of the notice was not frustrated, for example by demonstrating "(1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir. 2007), George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007) . The veteran received actual knowledge of the rating criteria in the statement of the case (SOC). An SOC could not provide VCAA notice. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The SOC did provide actual knowledge or should have put the veteran on notice of the rating criteria. He had a meaningful opportunity to participate in the adjudication of his claim, in that he had years after the statement of the case to submit evidence and argument, and had the opportunity to request a hearing. The March 2006 letter told him to submit evidence as to the effects of his disabilities on employment. At the examination provided in conjunction with his claims he was asked about the effects of his disabilities on employment and daily activities. He thus should have been put on notice that evidence of impacts on employment and daily activities was relevant to his claim. He has had several years to submit additional evidence since the examinations, and in fact, has made arguments regarding the effects on employment during the course of his appeal. The Board finds that the veteran should have known, and has evidenced actual knowledge, that evidence related to the occupational and social effects of his disabilities would be relevant to his claims. Furthermore, the veteran was informed that he should submit all pertinent evidence in his possession and the letters provided examples of the evidence he should submit. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran has substantiated his veteran status. He was notified of the second and third elements of the Dingess notice by the May 2005 letter. He received information regarding the effective date and disability rating elements of his claims in the March 2006 letter. In Pelegrini II, the Court also held that VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in the October 2007 SSOC. Therefore, any timing deficiency has been remedied. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. Additionally, the veteran has been provided proper VA examinations in response to his claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Increased Rating Claims A. General Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Right Shoulder Legal Criteria The veteran's right shoulder disability is currently rated under Diagnostic Code 5201 pertaining to limitation of motion of the shoulder. It provides for a 20 percent evaluation for limitation of motion of the major or minor arm when motion is possible to the shoulder level. Limitation of motion to midway between the side and shoulder level warrants a 20 percent evaluation for the minor arm and a 30 percent evaluation for the major arm. Limitation of motion to 25 degrees from the side warrants a 30 percent for the minor arm and 40 percent for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5203 for impairment of the clavicle or scapula provides that malunion of the clavicle or scapula, or nonunion without loose movement, warrants a 10 percent evaluation. A 20 percent evaluation requires nonunion with loose movement or dislocation. These disabilities may also be rated on the basis of impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Diagnostic Code 5202 for impairment of the humerus provides for a 30 percent evaluation for recurrent dislocation of the scapulohumeral joint of the major extremity with frequent episodes and guarding of all arm movements, and a 20 percent rating for the minor arm; with infrequent episodes and guarding of movement only at shoulder level, a 20 percent evaluation is appropriate for either arm. Malunion of the humerus, with marked deformity, warrants a 30 percent rating for the major arm and a 20 percent evaluation for the minor extremity; a 20 percent rating is for assignment for malunion, with moderate deformity of either extremity. Factual Background Service connection for a right shoulder condition was granted in an October 1980 rating decision. A 10 percent disability rating was assigned, effective March 8, 1980. The currently assigned evaluation of 20 percent was granted in a December 1997 rating decision, effective May 27, 1997. The veteran's claim for an increased rating was received in October 2002. Treatment records from the VA Medical Center (VAMC) show that in October 2002 the veteran was noted to have decreased range of motion of his right shoulder. At that time, he was three months post surgery for a joint reconstruction. Active range of motion was to 90 degrees of flexion, 80 degrees of abduction, full internal rotation, 30 degrees of external rotation, and 30 degrees of extension. The diagnosis was a well-healed shoulder. In response to his claim for an increased rating, the veteran was provided a VA contract examination in January 2003. The veteran was found to be right-hand dominant, and his right shoulder was tender on palpation. Range of motion of the right shoulder showed flexion to 90 degrees, abduction to 90 degrees, and internal and external rotation to 90 degrees. The examiner noted that the veteran had pain, weakness, lack of endurance, and fatigue upon range of motion, starting at 0 degrees and ending at 90 degrees. X-rays showed abnormal widening of the right AC joint that could be post-surgical or post-traumatic. The diagnosis was right shoulder injury with arthritis. The examiner noted that the veteran had a very stiff shoulder but could absolutely move and work over his hip on both the right and left side. The veteran was afforded another VA contract examination in January 2004. The veteran reported that he had started vocational rehabilitation at a community college and in September 2003 experienced pain from his right shoulder and neck that had negatively impacted his ability to work. He stated that he experienced constant burning pains in his shoulder. He also described having impairment of movement in the right arm and hand that has forced him to take medical retirement. The veteran noted that he was last employed as a machinist in July 2000. Physical examination of the right shoulder showed no heat, redness, swelling, or effusion. He had marked limitation of motion with flexion to 60 degrees, abduction to 80 degrees, and external and internal rotation to 20 degrees bilaterally. Pain began at the endpoint of motion and was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. The examiner also noted that he was unable to determine whether there was any ankylosis, although he suspected that ankylosis was present. Motor function was normal and the veteran claimed to have no pinprick feeling of the entire right arm. The diagnosis was post-operative right shoulder injury with arthritis. The examiner concluded that the veteran's right shoulder was severely impaired. He also found that the veteran would not be able to work above his head or lift anything significant above his waist. In October 2004 the veteran was again examined at the VAMC with complaints of right shoulder pain. He was found to have marked decreased motion in both shoulders and pain at the extremes of motion. In September 2005, the veteran underwent another VA contract examination. He complained of constant pain and decreased range of motion of the right shoulder. He described his functional impairment as an inability to work overhead and a limited ability to reach, push, or pull with his right upper extremity. He stated that he has lost approximately two years of work due to this injury. The veteran stated that he had worked as a machinist for several years and was currently employed, but had been on disability and modified duty status for the past two years. Physical examination of the right shoulder showed that it had normal appearance with no evidence of fixation or ankylosis. Flexion was decreased to 140 degrees, abduction was to 130 degrees, and external and internal rotation were to 70 degrees. The veteran reported increased pain with attempts to exceed this range of motion. After repetitive use and during flare-ups, the veteran would be additionally limited by pain, fatigue, weakness, and lack of endurance without evidence of incoordination. The examiner noted that it would require speculation to determine the additional loss of motion in degrees. The diagnosis post-operative right shoulder injury with arthritis and decreased range of motion of the shoulders and neck with an inability to perform required and essential job functions as a result. The veteran's most recent VA contract examination was conducted in August 2007. He reported having constant pain from his shoulder down to his arm with weakness, stiffness, swelling, heat, instability, lack of endurance, and fatigability. He stated that he was able to function on a limited basis with medication and he denied experiencing any incapacitation. Examination of the shoulders revealed guarding of movement bilaterally with no fixation and no ankylosis. Range of motion of the right shoulder indicated flexion to 100 degrees, abduction to 110 degrees, external rotation to 70 degrees, and internal rotation to 80 degrees. Limitation of motion was secondary to pain and after repetitive use, the veteran was additionally limited by pain, fatigue, weakness, and lack of endurance without incoordination. The additional limitation of motion in degrees was zero. The diagnosis was post-operative right shoulder injury with arthritis and a well-healed, non-tender scar. The examiner noted that the veteran had difficulty with overhead reaching, lifting, pushing, and pulling heavy items as a result of his right shoulder disability. Analysis The veteran's most limited right shoulder motion during the course of this appeal was recorded at his January 2004 VA contract examination. At that time, flexion was to 60 degrees, abduction was to 80 degrees, and external and internal rotation were both to 20 degrees. With no additional limitation of motion due to functional factors. While the January 2004 examiner found that the veteran's right shoulder was severely impaired, the Board notes that this conclusion is at odds with the results of the VA examinations in January 2003, September 2005, and August 2007. At those examinations, flexion and abduction were not found to be less than 90 degrees and there were no other instances when the veteran's internal and external reduction were noted to be less than 30 degrees. In addition, with respect to the DeLuca factors, none of the VA contract examiners, including the January 2004 examiner, found that the veteran experienced any additional loss of motion upon repetitive use. None of the ranges of motion, even those reported in January 2004, meet or approximate the criteria for an increased rating on the basis of limitation of motion. Therefore, when all pertinent factors are considered, the veteran's right shoulder disability has not most nearly approximated motion that was limited to midway between the side and shoulder at any time throughout the claims period. The Board also notes that the veteran is currently in receipt of the maximum rating allowable under Diagnostic Code 5203 for impairment of the clavicle or scapula. There is no medical evidence of recurrent dislocation of the scapulohumeral joint or malunion of the humerus with marked deformity as required for a 30 percent evaluation under Diagnostic Code 5202. Diagnostic studies have not shown such disabilities. Accordingly, the Board finds that the veteran's residuals of a right shoulder injury with arthritis most nearly approximate the criteria contemplated by the current 20 percent disability evaluation. C. Cervical Spine Legal Criteria During the pendency of this appeal, the criteria for evaluating disabilities of the spine were revised. Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Under the criteria effective September 26, 2003, lumbosacral and cervical spine disabilities are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2007). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or if 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 30 percent evaluation is warranted if forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of he entire cervical spine. Disability involving a neurological disorder is ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a (2007). Incomplete paralysis of the middle radicular group of the major upper extremity warrants a 20 percent evaluation if it is mild, a 40 percent evaluation if it is moderate or a 50 percent rating if it is severe. A 70 percent evaluation is warranted for complete paralysis of the middle radicular group of the major upper extremity. With complete paralysis, all adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist are lost or severely affected. 38 C.F.R. § 4.124a, Diagnostic Code 8511 (2007). Factual Background Service connection for cervical spondylosis with nerve root compression was granted in a March 2002 rating decision. A 20 percent disability rating was assigned, effective February 10, 1999. The veteran's claim for an increased rating was received in October 2002. In response to his claim for an increased rating the veteran was provided a VA contract examination in January 2003. He reported that his neck was constantly tender and stiff. Flexion of the neck was to 50 degrees, with extension to 40 degrees, right and left lateral flexion to 30 degrees, right rotation to 40 degrees, and left rotation to 30 degrees. There was moderate pain with range of motion testing as well as weakness, fatigue, and lack of endurance. There was no ankylosis. Sensory function was decreased to light touch and pinprick more on the ulnar side, but in general throughout the whole arm. X-rays showed degenerative spondylosis. The diagnosis was cervical spondylosis with nerve root compression that was partially relieved with traction. Records of outpatient treatment at the VAMC show that in October 2002, the veteran was diagnosed with diffuse cervical tenderness and mild degenerative joint disease of his cervical spine. A year later, in October 2003, the veteran's private physician noted that he experienced neuropathy and neuralgia on his right side related to prolonged sitting and working with a computer mouse. The veteran was afforded another VA contract examination in January 2004. He reported undergoing rehabilitation training at his local community college and in September 2003 noting shooting pain from his neck to his right arm during computer classes. He described having constant pain in his cervical spine. The veteran stated that he was on disability retirement because of his neck pain and had not been recommended bedrest. He had not worked since July 2000. Upon physical examination, the examiner found that there was no radiation of pain on movement, muscle spasm, or tenderness. Flexion was to 40 degrees, with extension to 45 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 60 degrees. Pain began at the endpoint and motion was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. Motor function was normal and the veteran made subjective complaints of numbness and pain in the extremities that prevented him from using his right arm. Cervical spine MRI showed normal vertebral heights and moderate arthritic changes at C3-C7. The examiner found that there was minimal cervical disc bulge or protrusion with no evidence of spinal stenosis or nerve root impingement. The diagnosis was degenerative disc disease with no nerve root impingement and limited motion with pain in the upper extremities. The examiner concluded that there was no objective evidence of the veteran's cervical condition affecting his occupational or daily life functioning. In October 2004, while receiving treatment at the VAMC, the veteran complained of worsening neck pain. His doctor found that he had no pain or weakness down his arm different from his previous problems. Also in October 2004, the veteran reported to his private doctor that he was finishing his schooling and was looking for a job in computer graphics. Records from the veteran's vocational training show that he was pursuing a degree at his community college in computer automated drafting. In September 2005, the veteran was provided another VA contract examination. He reported having constant pain and said that he was able to function with medication. He denied any incapacitation and stated he had been on disability for two years. Upon examination of the cervical spine, there was no evidence of radiation of pain on movement. There were positive paraspinal spasms without evidence of tenderness. There was no ankylosis. Cervical range of motion showed flexion was to 35 degrees, extension was to 30 degrees, right and left lateral flexion was to 35 degrees, and right and left rotation was to 70 degrees. The veteran reported increased pain with attempts to exceed this range of motion. After repetitive use or during a flare-up, the veteran would be additionally limited by pain, and lack of endurance without evidence of fatigue, weakness, or incoordination. The examiner noted that it would require speculation to estimate the amount of additional motion loss in degrees. There did not appear to be any intervertebral disc syndrome with chronic and permanent nerve root involvement found. Neurological examination showed abnormal motor function with decreased strength of the upper extremities. There was also decreased pinprick of the forearm bilaterally, with the left greater than the right. The diagnosis was decreased range of motion of the shoulders and neck with a resulting inability to perform essential job functions. The veteran required modified duty. VAMC records from October 2005 indicate that the veteran was diagnosed with cervical radiculopathy following complaints of pain and numbness down his arms. A year later, in October 2006, he reported that he worked as a computer clerk and complained that he was not able to move his right arm very much. In January 2007, his VA doctor noted an MRI conducted in 2006 showed no spinal cord impingement or nerve encroachment resulting from the veteran's cervical spine disability. The veteran's most recent VA contract examination was conducted in August 2007. He reported having pain, stiffness, and weakness. Functional impairment included difficulty with cervical range of motion. Upon examination, there was no evidence of radiation of pain, spasm, or tenderness. There was no ankylosis. Range of motion was normal. After repetitive use, the veteran experienced pain, fatigue, weakness, and lack of endurance, but there was no additional loss of motion in degrees. There was no intervertebral disc syndrome and no nerve root involvement. Neurological examination showed normal motor and sensory function. X-rays indicated early osteoarthritis changes of the cervical spine. The diagnosis was degenerative joint disease of the cervical spine. With respect to the veteran's occupational functioning, the examiner noted that the veteran had difficulty with his occupational range of motion, lifting, pushing, and pulling. Analysis As a preliminary matter, the Board notes that the veteran has not alleged and the record does not show that he has experienced any incapacitating episodes resulting from his cervical spine disability. In fact, the veteran has repeatedly denied experiencing periods of incapacitation at his VA contract examinations. Furthermore, his VAMC and private treatment records are negative for evidence that he has been prescribed bedrest as required by Diagnostic Codes 5293 and 5243. In addition, while the January 2004 VA examiner diagnosed the veteran with degenerative disc disease, the September 2005 and August 2007 examiners found that there was no evidence of intervertebral disc syndrome. Therefore, an increased rating is not warranted at any time throughout the claims period under Diagnostic Code 5293 (2003) or 5243 (2007). The medical evidence of record shows that while the veteran's cervical spine disability manifests limitation of motion, it does not most nearly approximate the criteria associated with an increased disability evaluation of 30 percent. In this regard, the Board notes that the veteran's greatest limitation of flexion was measured at his September 2005 VA contract examination when neck flexion was to 35 degrees. While a 30 percent rating is warranted under the current rating criteria when flexion is to 15 degrees or less or for favorable ankylosis of the entire cervical spine, the Board finds that the preponderance of the medical evidence of record establishes that the veteran has flexion of his cervical spine greater than 15 degrees. The veteran was provided four VA contract examinations in January 2003, January 2004, September 2005, and August 2007, and flexion has never been measured as 15 degrees or less. In fact, at the veteran's most recent examination in August 2007, the examiner found that range of motion of the cervical spine was normal. With respect to the DeLuca criteria, the Board notes that the January 2003, September 2005, and August 2007 contract examiners all found that the veteran experienced pain, fatigue, and lack of endurance following repetitive motion testing. While the September 2005 examiner noted that motion would be additionally limited during flare-ups, he also found that it would require speculation to estimate the amount of loss in degrees. The August 2007 examiner, however, found that there was no additional loss of motion after repetitive use. In any event, it is clear that even when all pertinent disability factors are considered, the veteran does not have flexion of his cervical spine that is limited to 15 degrees or less. Similarly, the medical evidence does not establish that the veteran has manifested severe limitation of motion as required for an increased rating under the former criteria. In this regard, the Board notes that in October 2002, following treatment at the VAMC, the veteran's physician characterized his cervical spine degenerative joint disease as mild. Furthermore, the VA contract examiners have specifically found that the veteran does not have ankylosis of the cervical spine and even when all pertinent disability factors are considered, it is clear that the veteran retains useful motion of his cervical spine. Accordingly, a disability evaluation in excess of 20 percent is not warranted for the veteran's cervical spine disability on the basis of limitation of motion under the current or former criteria. The Board finds that the preponderance of the medical evidence satisfactorily establishes that a separate 20 percent rating is warranted for mild incomplete paralysis of the right (major) middle radicular group throughout the evaluation period. The Board notes that the criteria for evaluating impairment of the peripheral nerves have not been revised during the period of this claim. In addition, since the neurological impairment of the right upper extremity is separate and distinct from the functional impairment of the cervical spine, separate ratings for this components of the disability is allowed under the former rating criteria. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 259, 262. The veteran has consistently complained of radiating pain into his right arm and wrist and he was diagnosed with cervical radiculopathy in October 2005. While a MRI conducted in 2006 showed no spinal cord impingement or nerve encroachment, the veteran has been found to experience sensory and some motor impairment in his right arm. A rating in excess of 20 percent is not appropriate as none of the medical evidence shows that the incomplete paralysis has more nearly approximated mild than moderate. The October 2005 diagnosis of cervical radiculopathy at the VAMC was based on the veteran's subjective complaints of pain and numbness. While some decreased sensation has been noted at the veteran's January 2003 and September 2005 contract examiners, the January 2004 and August 2007 reported no evidence of upper extremity neurological impairment. When noted, the impairment has been sensory in nature. Therefore, the Board concludes that the preponderance of the evidence establishes that the cervical spine disability has resulted in mild neurological impairment to the right (major) upper extremity. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this period because the preponderance of the evidence is against the claim. D. Extra-Schedular Considerations Under the provisions of 38 C.F.R. § 3.321(b)(1) (2007), in exceptional cases an extraschedular evaluation can be provided in the interest of justice. The governing norm in such a case is that the case presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. Where the veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. If the matter is not referred, the Board must provide adequate reasons and bases for its decision to not so refer it. Colayong v. West 12 Vet. App. 524, 536 (1999). While the veteran has alleged that he experiences marked interference with employment in that he was out of work for several years due to his right shoulder and cervical spine disabilities, the Board notes that during the appeals period, the veteran was making satisfactory progress in pursuing a degree at a community college in computer automated drafting. He reported in October 2006 that he was working as a computer clerk. Therefore the veteran is currently employed. Notwithstanding his reports of difficulties in work and school, he has been able to progress towards a degree and obtain employment in the field in which he was training. The record does not show time lost from school or work due to the service connected disabilities, and there is no evidence of other exceptional impacts on his work. With respect to whether the veteran's right shoulder and cervical spine disabilities produce symptoms that are in excess of those contemplated by the currently assigned disability evaluations, the Board notes that while the veteran has complained of pain and difficulty moving his right arm at work, as noted above, the Board has found that a separate 20 percent rating is warranted for the veteran's cervical radiculopathy of the right arm. Therefore, the veteran is currently in receipt of a schedular rating to compensate him for his complaints of right arm pain and numbness from his disabilities. There is no evidence that the veteran has been hospitalized because of his right shoulder or cervical spine disabilities or that the average industrial impairment from his disabilities are in excess of that contemplated by the currently assigned disability evaluations. In the absence of evidence of exceptional factors, there is no need to remand this matter for consideration of an extraschedular rating. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. III. TDIU Legal Criteria A TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2007). If these percentage requirements are not met, but the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2007); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis First, it must be determined whether the veteran meets the percentage requirements for TDIU under 38 C.F.R. § 4.16(a). The Board notes that service connection for the veteran's cervical spondylosis with nerve root compression was granted in a March 2002 rating decision as secondary to his service- connected right shoulder injury with arthritis. Similarly, the Board, as discussed above, has found that service connection is warranted for impairment of the right upper extremity as secondary to the veteran's cervical spine. Therefore, all of the veteran's service connected disabilities result from a common etiology. While the veteran's three service-connected disabilities are considered to be one disability for the purposes of 38 C.F.R. § 4.16, their combined rating is not 60 percent or more as required under 38 C.F.R. § 4.16(a). In this regard, the Board notes that the combined ratings table contained in 38 C.F.R. § 4.25 indicates that the veteran's current combined rating is 50 percent. Therefore, the veteran does not meet the does not meet the minimum schedular criteria for a total rating based on unemployability as required by 38 C.F.R. § 4.16(a). The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under38 C.F.R. § 3.321(b)(1), but concludes that this case presents no unusual or exceptional circumstances that would justify a referral of the claim. In this regard, the Board notes that while the veteran has repeatedly stated that he is unemployable due to his service-connected disabilities, as noted above, records of treatment from the VAMC in October 2006 indicate that the veteran is currently employed as a computer clerk. In addition, none of the VA contract examiners who have examined the veteran have found that he is totally unemployable due to his service-connected disabilities. At the veteran's most recent contract examination in August 2007, the examiner only found that the veteran would have difficulty with overhead reaching, cervical range of motion, and lifting, pushing, and pulling. In addition, the September 2005 contract examiner found that while the veteran had an inability to perform essential job functions, he required modified duty. The examiner did not find that the veteran was unemployable. In fact, the only physician who has concluded that the veteran is unemployable is the veteran's private doctor. This medical opinion, noted in an April 2003 letter, also took into account the veteran's nonservice-connected left shoulder disability. The record also reflects that the veteran has not required hospitalization for his service-connected disabilities. In sum, the veteran's right shoulder injury with arthritis, cervical spondylosis with nerve root compression, and impairment of the right upper extremity are clearly not sufficient by themselves to render the veteran unemployable. Therefore, referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a rating in excess of 20 percent for residuals of a right shoulder injury with arthritis is denied. The cervical spine disability warrants a separate 20 percent rating for neurologic impairment of the right upper extremity. Entitlement to TDIU is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs