Citation Nr: 0811083 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 99-06 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for residuals of a compression fracture at T-7. 2. Entitlement to a disability rating higher than 20 percent for impairment of the cervical spine, resulting from cervical disc disease. 3. Entitlement to a separate compensable disability rating for left upper extremity neurological impairment resulting from the cervical disc disease. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran served on active duty from March 1965 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In conjunction with this appeal, the veteran presented personal testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in October 2001. A transcript of that hearing is associated with the claims files. These matters were previously before the Board, and adjudicated in a decision dated in June 2005. In that decision, the Board denied entitlement to a disability rating higher than 20 percent for residuals of a compression fracture at T-7, and entitlement to a disability rating higher than 20 percent for cervical disc disease, status-post C-6 and C-7 fusion with nerve root compression. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in October 2006, the Court vacated the Board's June 2005 decision, and remanded both matters to the Board for development consistent with a Joint Motion of the Parties (Joint Motion). Pursuant to the Joint Motion and Order of the Court, in April 2007, the Board remanded both issues to the RO for additional evidentiary development. The case has since been returned to the Board for further appellate action. TDIU Claim The veteran, through his attorney, has asserted that his thoracic and cervical spine disabilities have rendered him unemployable. The Board notes that a TDIU claim has not been adjudicated by the RO. According to VA General Counsel, the Board has jurisdiction to consider the question of TDIU entitlement as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim(s). If the veteran asserts entitlement to a TDIU rating based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim, except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2007). As service connection is only in effect for the thoracic and cervical disabilities currently on appeal, adjudication of a TDIU in this case would necessarily involve consideration of only the disabilities on appeal. Therefore, the Board concludes, based on the VA General Counsel Opinion referred to above, that the question of entitlement to a TDIU is a component of the appealed increased rating claims, and therefore the Board does have jurisdiction over the issue of entitlement to TDIU. FINDINGS OF FACT 1. The veteran's thoracic residuals are manifested by flexion measured to 60 degrees, with normal muscle tone and with weekly flare-ups that are moderate in degree, but without cord involvement, abnormal mobility, spasms, weakness, atrophy, guarding, or fatigability, with no episodes requiring bed rest, and with no additional limitation of functional ability on repeated use or during flare-ups. 2. The veteran's cervical disc disease results in impairment of the cervical spine that is moderate in degree, it does not require bed rest prescribed by a physician, and it is manifested by moderate limitation of motion of the cervical spine, with flexion greater than 15 degrees. 3. The neurological impairment of the veteran's left upper extremity due to cervical disc disease is mild. 4. The veteran does not have at least one disability ratable at 40 percent or more, and his combined rating is not 70 percent or more. 6. The veteran's service-connected disabilities alone do not render him unable to secure or follow a substantially gainful occupation consistent with his education and industrial background. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for residuals of a compression fracture at T-7 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5235 (2007). 2. The criteria for a disability rating higher than 20 percent for impairment of the cervical spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. . §§ 4.7, 4.71a, Diagnostic Code 5243 (2007). 3. The criteria for a separate 20 percent disability rating, but not higher, for left upper extremity neurological impairment are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. . §§ 4.7, 4.124a, Diagnostic Code 8513 (2007). 4. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking increased disability ratings for his service-connected residuals of a compression fracture at T-7, and for cervical disc disease. He is also seeking a TDIU. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the veteran's claims were initially adjudicated before the enactment of the VCAA in November 2000. The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he submit any pertinent evidence in his possession by letter mailed in June 2007. Following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the veteran's claims in November 2007. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the RO on the merits of any of these claims would have been different had VCAA notice been provided at an earlier time. The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he 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; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability, the notice letter must provide at least general notice of that requirement. The notice letter must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board finds that not all of the information specified by the Court in Vazquez-Flores was provided in the June 2007 notice letter. In particular, the information pertaining to diagnostic codes was not addressed. That letter also did not address the specific provisions governing entitlement to a TDIU. However, the Board finds that there is no prejudice to the veteran in this case, as the veteran has demonstrated actual knowledge of the requirements for the benefits sought. The veteran's attorney has submitted a nineteen page brief to the Court providing reasons why he believes that increased ratings and a TDIU are warranted. Moreover, the participation of the veteran's attorney in the preparation of the Joint Motion is ample demonstration that he, and by extension, the veteran, understands the precise issues that are before the Board, and the evidence necessary to substantiate those claims. As noted above, the RO readjudicated the veteran's claims in November 2007, after these documents were completed. Indeed, these issues were remanded not for any deficiency in VA's application of the rating schedule, but specifically so that extra-schedular ratings could be considered. The Board also notes that the veteran has been afforded appropriate VA examinations and service treatment records, Social Security Administration (SSA) disability records, private treatment records, and pertinent VA medical records have been obtained. Neither the veteran nor his attorney has identified any outstanding evidence, to include medical records, that could be obtained to substantiate any of these claims. The Board is also unaware of any such outstanding evidence. This case was remanded by the Board in April 2007 for the primary purpose of obtaining an updated VA examination of the veteran's service-connected thoracic and cervical spine disabilities. A VA examination was conducted in August 2007; however, the examiner was unable to obtain range of motion measurements, and was unable to conduct neurological testing including reflexes and sensory examinations, because of what the examiner described as the veteran's refusal on multiple occasions to undergo such testing. While VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to cooperate with VA in developing such evidence. The duty to assist is not always a one-way street; nor is it a blind alley. The veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination. In the absence of such cooperation, it is appropriate to decide the claim based on the evidence of record. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). It may be argued that the veteran's refusal to cooperate in his examination should be interpreted as a medical finding that any motion of the cervical or thoracic spine is painful, and thus limited. In the Board's view, there is a crucial distinction between a hypothetical medical finding that all motion of the spine was accompanied by pain, and a finding, as here, that no testing could be conducted because the veteran refused to participate. The examiner, a medical professional, is presumed to be competent to recognize and to make such distinctions. In this case, any fault in the failure to develop the record or to carry out the Board's remand instructions lies with the veteran. The Board notes that the veteran is represented by an attorney and is presumed to understand the consequences of refusing to cooperate in the development of his claims. Accordingly, the Board concludes that no further assistance is required in the development of these claims, and the claims will be decided based on the evidence of record. In sum, the Board is satisfied that the RO properly processed these claims following the provision of the required notice and that any procedural errors in its development and consideration of the claims were insignificant and non prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claims. Legal Criteria Increased Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2004) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2007). 38 C.F.R. § 4.45 states that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2007). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2007). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. For a veteran to prevail on a claim for TDIU on an extra- schedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007). Burdon of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board notes initially that, although the Joint Motion identified only the Board's failure to address entitlement to an extra-schedular referral as a basis for vacating and remanding the Board's decision, the resulting action was not limited to the issue of extra-schedular referral. Accordingly, the Board will address the issues vacated and remanded by the Court on a de novo basis. The Board notes that the medical evidence was summarized in detail in the prior June 2005 Board decision. Such a summary will not be repeated here. The Board has considered all prior evidence in addition to the evidence acquired since the vacated June 2005 decision, however, such evidence will only be addressed here to the extent that it is directly pertinent to the Board's analysis. Also of note, during the course of the veteran's claim, the regulations governing evaluation of disorders of the spine were amended. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). The amendment is effective September 26, 2003. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). The revised amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, VA must apply the new provisions from their effective date. Thoracic Disability The service-connected residuals of a compression fracture at T7 are currently rated as 20 percent disabling under former Diagnostic Code 5285. The April 1992 rating decision which first assigned the 20 percent rating states that 10 percent is warranted for demonstrable vertebral deformity and 10 percent is warranted for recurrent complaints of thoracic pain. Under the former version of the rating schedule, Diagnostic Code 5285 addresses impairment due to vertebral fracture residuals: Under that code, a 100 percent rating requires cord involvement, and that the veteran is bedridden, or requires long leg braces. A 60 percent rating is for application where there is no cord involvement, but there is abnormal mobility requiring neck brace (jury mast). For lesser involvement, residuals are to be rated based on limited motion and nerve paralysis, with consideration of special monthly compensation. In such cases, ratings are to be assigned for definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. The Board observes that there is no spinal cord involvement associated with the veteran's thoracic disability. In addition, it is clear that the fracture residuals have not necessitated the use of long leg braces or a neck brace, nor have they resulted in abnormal mobility. In fact, the June 2004 VA examiner stated that the thoracic spine did not seem to be causing any myelopathy or problems. The August 2007 examiner noted that the veteran could walk a quarter mile, there was no objective evidence of spasm, atrophy, or guarding, and that such symptomatology did not result in abnormal gait or abnormal spinal contour. Accordingly, the criteria for the 60 percent and 100 percent levels under Diagnostic Code 5285 are not met or more nearly approximated. Under the former criteria, an evaluation in excess of 20 percent could also be assigned on the basis of vertebral deformity (10 percent) and ankylosis of the thoracic spine (20 or 30 percent depending upon whether it is favorable or unfavorable); however, the evidence shows that the veteran retains some useful motion of the thoracic spine and therefore is not entitled to more than a 10 percent evaluation for limitation of motion of the thoracic spine. The Board notes that, while the veteran did not cooperate in range of motion testing in August 2007, the examiner specifically found that there was no ankylosis of the thoracolumbar spine. As noted above, the Board does not interpret the veteran's refusal to cooperate in his examination as a medical finding that all motion is painful and therefore limited. In particular, the Board notes the examiner's findings that the veteran was able to walk 1/4 mile, there was no muscle atrophy, and that symptoms such as muscle spasm, localized tenderness and guarding are not severe enough to be responsible for abnormal gait or abnormal spinal contour. Finally, the Board notes that the veteran has not been diagnosed with intervertebral disc disease of the thoracic spine. Therefore, consideration of Diagnostic Code 5293 is not appropriate. Accordingly, the service-connected disability of the thoracic spine does not warrant more than a 20 percent evaluation under the former criteria. With respect to the current criteria for evaluating disabilities of the spine, the Board notes that there is no longer any provision for the addition of 10 percent for vertebral deformity, as under the former version. Limitation of motion of the thoracolumbar spine does not warrant an evaluation in excess of 20 percent unless forward flexion of the thoracolumbar spine is limited to 30 degrees or less. The Board acknowledges that January and February 2004 reports from the Therapy Center, Inc. show measurements of "lumbar spine" flexion of 20 degrees and 18 degrees respectively. However, service connection is not in effect for a purely lumbar spine disability. The current rating criteria provide for thoracolumbar range of motion measurements; however, the Therapy Center reports do not indicate that the thoracic spine measurements were included at all. Shortly thereafter, at the June 2004 VA examination, thoracolumbar flexion was measured to 60 degrees. As the reports from the Therapy Center do not provide measurements for thoracic range of motion, the Board considers the contemporaneous June 2004 findings to be the most probative with respect to thoracic range of motion during this period. While, as noted above, the veteran did not cooperate with the August 2007 VA examiner in obtaining range of motion measurements, there are several findings of the August 2007 examiner that are pertinent to the Board's analysis. The examiner found that the veteran experiences weekly flare-ups that are moderate in degree. These last 1 to 2 days and are brought on by activity and twisting. However, in light of the 20 percent rating currently assigned, these occasional moderate flare-ups do not appear to be of such a degree as would more closely approximate the criteria for the 40 percent level. In other words, weekly moderate flare-ups do not approximate overall forward flexion of the thoracolumbar spine that is limited to 30 degrees or less. The Board also finds significant that the examiner found no spasms, weakness, atrophy or guarding associated with the thoracic disorder, and muscle tone was normal. In addition, the June 2004 VA examiner stated that there were no additional limitation of functional ability on repeated use or during flare-ups, no fatigability, and no episodes requiring bed rest. Based on these findings, the Board concludes that the preponderance of the evidence is against symptomatology of the type and degree as would support more than the currently assigned evaluation of 20 percent under the current criteria. While the Board acknowledges that there is conflicting evidence with respect to muscle spasms and guarding, the Board notes that these symptoms are consistent with even the 10 percent level, and do not support entitlement to a 40 percent rating. There is evidence of arthritis associated with the veteran's service connected condition; however, the Board notes that Diagnostic Code 5003 [arthritis, degenerative (hypertrophic or osteoarthritis)] rates by analogy to limitation of motion of the joint affected, which is essentially how the disability is now rated. Consideration has been given to assigning staged ratings; however, at no time during the period in question has this disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Cervical Disability The veteran's cervical disc disease is currently rated as 20 percent disabling under the old criteria, Diagnostic Code 5293. A higher rating of 40 percent requires severe; recurring attacks, with intermittent relief. Such a rating is not warranted because the evidence shows no more than moderate intervertebral disc disease of the cervical spine. In so finding, the Board notes that reflexes have repeatedly been normal; and, despite some mild weakness of the left upper extremity, no atrophy has been found. Indeed, there was no evidence of disc disease found on the June 2004 X-ray examination. While the August 2007 VA examiner noted some lower extremity neurological symptoms, these were found not to be related to the service-connected disability. While the veteran refused to cooperate with range of motion and sensory testing, the August 2007 examiner noted no weakness, atrophy, guarding, or spasms associated with the cervical disorder. The veteran's posture was normal and symmetric in appearance. Muscle tone was normal. In addition, there have been no incapacitating episodes requiring bedrest prescribed by a physician so a higher evaluation under the revised criteria for evaluating intervertebral disc syndrome on the basis of such episodes is not warranted. With respect to whether a higher rating is warranted on the basis of limitation of motion, under the former rating criteria, a higher 30 percent rating requires a showing of severe limitation of motion. See Diagnostic Code 5293. Under the current rating schedule, a 30 percent rating requires that forward flexion of the cervical spine to be limited to 15 degrees or less or the presence of favorable ankylosis of the entire cervical spine. The January 1997 VA examination revealed that the veteran had fairly good range of motion. Extension of the neck to 30 degrees produced pain; however the veteran was able to flex down on the chest quite well without any pain. The November 1998 VA examination report shows that the veteran had limited range of motion in his cervical spine due to pain; however, actual results were not reported. A January 2004 report from the Therapy Center shows that flexion of the cervical spine was measured to 30 degrees. In February 2004, flexion of the neck was measured to 28 degrees. At the June 2004 VA examination, all motions of the cervical spine were measured to 30 degrees. The VA examiner noted that there was no additional limitation of functional ability on repeated use or during flare-ups. There is evidence of ankylosis at the C6-7 level, as the veteran underwent a fusion at this level in 1989. However, both versions of the rating schedule specify that in order to warrant a 30 percent rating on the basis of ankylosis, there must be favorable ankylosis of the entire cervical spine. This is not shown. In sum, at no time has the presence of more than moderate limitation of motion of the cervical spine or limitation of forward flexion of the cervical spine to 15 degrees or less been demonstrated. Therefore, a higher evaluation on the basis of limitation of motion is not warranted under the former or current criteria. There is evidence of arthritis associated with the veteran's service connected condition; however, the Board notes that Diagnostic Code 5003 [arthritis, degenerative (hypertrophic or osteoarthritis)] rates by analogy to limitation of motion of the joint affected, which is essentially how the disability is now rated. Consideration has been given to assigning staged ratings; however, at no time during the period in question has this disability warranted a higher rating. See Hart, 21 Vet. App. 505; Fenderson, 12 Vet. App. 119. Left Upper Extremity The August 2007 VA examiner found that the veteran had decreased motor function of the left upper extremity affecting the radial, median, and musculocutaneous nerves, and that such impairment was due to the service-connected cervical spine disability. Motor function was rated at 4 out of 5 for flexion and extension of the left elbow and wrist. These findings correspond to similar findings made on VA examination in June 2004. Based on such findings, the Board concludes that a separate 20 percent rating for mild impairment of all radicular groups is warranted under Diagnostic Code 8513. To warrant the next higher 30 percent rating for the minor appendage (the veteran was noted in the January 1997 VA examination report to be right-handed) is authorized for moderate impairment of all radicular groups. However, based on the minimal symptomatology reported, i.e., subjective numbness in the left upper extremity, and the mild motor impairment noted above, there is no basis in the record to conclude that the veteran's left upper extremity impairment more nearly approximates moderate than mild. In addition, the Board notes that on examination in January 1997 reflexes were normal and range of motion was complete in both shoulders. The Board acknowledges that the November 1998 examiner stated that there was so much guarding in trying to assess the left arm that it was difficult to evaluate the veteran's strength. However, this guarding was attributed to the veteran's cervical spine, not specifically to the left arm. Despite this difficulty, reflexes were found to be perfectly normal and there was a good range of motion in the left arm. Accordingly, while a 20 percent rating is in order, a rating higher than 20 percent is not warranted. Consideration has been given to assigning staged ratings; however, at no time during the period in question has this disability warranted more than the 20 percent rating granted herein. See Hart, 21 Vet. App. 505; Fenderson, 12 Vet. App. 119. TDIU As a result of the Board's decision here, the veteran essentially has three service-connected disabilities: residuals of a compression fracture at T-7, rated at 20 percent disabling, and cervical disc disease, status-post C-6 and C-7 fusion with nerve root compression, rated at 20 percent disabling for impairment of the cervical spine, and separately rated at 20 percent disabling for left upper extremity neurological impairment. The veteran therefore has three disabilities ratable at 20 percent, and his combined disability rating is 50 percent, using the table at 38 C.F.R. § 4.25 (2007), which is less than the 70 percent combined rating required for the assignment of a total rating. The Board notes that the 20 percent rating for the thoracic spine was originally assigned as two separate 10 percent ratings; however, this does not alter the result of a 50 percent combined rating. Thus, the Board finds that the veteran fails to meet the schedular criteria for consideration of a total rating based on individual unemployability due to service- connected disabilities. See 38 C.F.R. § 4.16(a) (2007). Entitlement to a TDIU on a schedular basis will therefore be denied as matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Extra-schedular Considerations The Board has considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. By regulation, extra-schedular ratings may be assigned where the schedular criteria are inadequate and there are exceptional factors such as the need for frequent hospitalization or marked interference with employment. 38 C.F.R. § 3.321(a) (2007). In addition, pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extra-schedular consideration in accordance with 38 C.F.R. § 3.321. Here, with respect to the increased rating claims, as discussed in detail above, the record reflects that the veteran has not required frequent hospitalizations for his thoracic or cervical spine disabilities, and that the manifestations of those disabilities are consistent with those contemplated by the schedular criteria. While the veteran was hospitalized for a cervical discectomy and fusion, this was in 1989, prior to the period on appeal, and in any event, does not constitute frequent hospitalization. This leaves the related questions of whether there is marked interference with employment for purposes of 38 C.F.R. § 3.321(a), and whether the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities for purposes of 38 C.F.R. § 4.16(b). The Board will address these issues in a common discussion. There is no question that the veteran has been unemployed for a considerable period of time. The August 2007 VA examiner noted that the veteran has been unemployed for the past 5 to 10 years and was on short-term disability from his former employer. However, unemployment does not equate to unemployability, nor does it necessarily suggest that the veteran's service-connected disabilities, without consideration of other factors, render him unemployable, or cause marked interference with employment. The veteran was apparently employed at the time of the January 1997 VA examination, and that report notes that the veteran's neck and back pain prevented him from sleeping and caused him to miss work. In April 1998 the veteran submitted documentation from his employer showing that he had 61 absences in 1996 and 76 absences in 1997 due to his back problems. In a November 1998 examination report, the veteran was noted to be holding the same job and still missing work. An August 2001 VA medical record notes that the veteran received a job demotion, which he felt was due to his health. However, the January 1997 examiner did not find that the veteran was unemployable, but stated that if the veteran could obtain a job which required less activity (the veteran has a college degree) he could probably handle it physically. Along the same lines, on VA examination in June 2004, the examiner opined that the veteran could handle almost all desk jobs, but would be limited in any heavy lifting and repetitive bending activities. A February 2004 report from the Therapy Center states that the veteran can safely work 8 hours a day for 5 days a week in a sedentary job or one requiring light physical demand. The veteran stated that discomfort was present in either the neck, mid back, or low back during testing; however, he said that he was able to work through the discomfort for the most part. While the August 2007 examiner found that the veteran was not able to engage in activities such as sports, recreation, and exercise, and there was severe impairment of the veteran's ability to engage in chores, his abilities with respect to feeding, bathing, shopping, dressing, toileting, and grooming were found to be moderate, and his impairment in travelling was considered only mild. This is consistent with the Board's findings above. An April 2004 letter from Dr. Hill states that the veteran had been unable to work since August 2001 due to chronic back pain. However, there was no discussion of whether other types of employment would be feasible. Clearly, the veteran's cervical and thoracic disorders interfere with his industrial capacity, and limit his ability to engage in certain physically demanding types of employment. However, the disability ratings assigned are recognition that industrial capabilities are impaired. See Van Hoose, 4 Vet. App. at 363. The type of impairment demonstrated on examination is completely consistent with the disability ratings assigned. Further, there is ample evidence suggesting that the veteran could handle employment consistent with his education and physical abilities. In sum, the record when considered as a whole does not indicate that the average industrial impairment from any of the service-connected disabilities would be in excess of that contemplated by the assigned evaluation. Moreover, the preponderance of the evidence establishes that the veteran's service-connected disabilities alone are not sufficient to render him unable to secure or follow any form of substantially gainful employment consistent with his education and industrial background. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating higher than 20 percent for residuals of a compression fracture at T-7 is denied. Entitlement to a disability rating higher than 20 percent for impairment of the cervical spine resulting from cervical disc disease is denied. Entitlement to a separate 20 percent disability rating for left upper extremity neurological impairment due to the service-connected cervical spine disability is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a TDIU is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs