Citation Nr: 1619277 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 09-42 114A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to a rating higher than 20 percent for degenerative disc disease of the cervical spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from February 1992 to February 1995. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer at that Board. The Veteran was informed of this in a September 2012 letter and advised him that he could testify at another hearing if he so chose. The same letter notified the Veteran that if he did not respond within 30 days, the Board would assume that he did not want another hearing. No response was received from the Veteran. In an April 2014 decision, the Board increased the Veteran's rating for tension headaches to 30 percent effective March 25, 2005. This was effectuated in an August 2014 rating decision. The April 2014 Board decision also found that the issue of a total disability rating due to individual unemployability (TDIU) had been separately adjudicated in an unappealed May 2009 rating decision and was no longer before the Board. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2015, the Court issued a memorandum decision vacating the portion of the April 2014 decision that found that the Board lacked jurisdiction over the issue of TDIU and remanded the issue of entitlement to TDIU to the Board. The portion of this appeal that addressed the Board's denial of an initial rating higher than 30 percent for tension headaches was dismissed. Also in April 2014, the Board remanded the issue of an increased rating for degenerative disc disease of the cervical spine for further development. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran's cervical spine disability has been characterized by pain, limitation of motion to no less than 15 degrees of forward flexion, moderate radiculopathy of the right upper extremity and mild radiculopathy of the left upper extremity. 2. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent, but not more, for degenerative disc disease of the cervical spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5242 (2015). 2. Throughout the appeals period, the criteria for a separate 40 percent rating for radiculopathy of the right upper extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124a, Diagnostic Codes (DC) 8510 (2015). 3. Throughout the appeals period, the criteria for a separate 20 percent rating for radiculopathy of the left upper extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124a, Diagnostic Codes (DC) 8510 (2015). 4. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in a letter sent to the Veteran in July 2008. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159. Service, VA, and private treatment records are associated with the claims file as well as relevant VA examinations in August 2008, October 2011, and September 2014. These examinations contained all information needed to rate the claimed disabilities. Indeed, the examiners reviewed the objective evidence of record, documented the Veteran's current complaints, and performed thorough clinical evaluations. Therefore, these examinations are adequate for VA purposes. In compliance with the Board's September 2011 and April 2014 remands, VA obtained additional VA and private treatment records and VA provided the Veteran with medical examinations in October 2011 and September 2014 to address his assertions of worsening symptoms. Thus VA has complied with the September 2011 and April 2014 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Rating - Cervical Spine The Veteran was originally granted service connection for cervical stain, status post motor vehicle accident (cervical spine disability) in an April 1995 rating decision. At that time, this disability was rated 10 percent effective February 11, 1995. In a June 1997 rating decision, a decreased rating to noncompensable (0 percent) was proposed. This rating was reduced in a September 1997 rating decision. This reduction to 0 percent was effective December 1, 1997. In a March 2005 rating decision, the Veteran's rating for cervical spine disability was increased to 10 percent effective February 11, 1995, and then a noncompensable (0 percent) rating was assigned effective December 1, 1997. In a May 2005 rating decision, this rating was increased to 20 percent effective March 25, 2005. The Veteran sought an earlier effective date for that increase, but was denied in a July 2005 rating decision. The Veteran filed his current claim for an increased rating in June 2008. The disability has been recharacterized as degenerative disc disease of the cervical spine to reflect the medical evidence of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted; a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Degenerative disc disease of the cervical spine is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5242. A 20 percent disability rating is assigned 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, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, DC 5242, Note (2). The normal combined range of motion of the cervical spine is 340 degrees. See id. Unfavorable ankylosis is a condition in which the spine is fixed in flexion or extension and results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The medical evidence of record notes that the Veteran sustained a work-related injury while trying to open a heavy door in April 2008 that led to a diagnosis of cervical sprain and right shoulder sprain. He was cleared to return to work on June 2, 2008. The symptoms caused by the Veteran's service-connected disability have not been clearly distinguished from those caused by this additional injury. As such, VA must consider all symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). A June 2008 private EMG record notes the Veteran's complaints of neck pain and numbness in the bilateral upper extremities. These test results show some impairment of the bilateral median nerves. A June 2008 physical therapy initial evaluation found the Veteran's cervical spine range of motion to be from zero to 45 degrees flexion, from zero to 40 degrees extension, from zero to 20 degrees right lateral flexion, from zero to 15 degrees left lateral flexion, from zero to 45 degrees right rotation, and from zero to 30 degrees left rotation. This is a combined range of motion of 195 degrees. A July 2008 private radiology report found mild degenerative changes of the cervical spine, with a slight narrowing of the neural foramina at C3-4, C4-5, and C5-6. There was no subluxation. There were incidental finding of prominent nasopharyngeal and right oropharyngeal soft tissues. In a July 2008 work capacity evaluation, Dr. I.U.R. found that the Veteran was unable to perform his usual job and unable to work for eight hours per work day with restrictions. Maximum improvement had been reached. In August 2008, the Veteran underwent a VA examination in conjunction with this claim. At that time he complained of chronic constant neck pain, tingling in the tips of his fingers, weakness in both arms, fatigue, lack of endurance, and incoordination. He reported 5/10 pain at rest while sitting in the waiting room. He reported flare-ups of 8/10 pain lasting a few hours three or four times per week. Precipitating factors were mornings and rainy weather. Alleviating factors were rest, heat, and medication. Flare-ups additionally impaired his ability for self-care in regard to tying his shoes. He had associated insomnia and fatigue. The Veteran did not use an assistive device to walk and was able to do so unaided. He used a neck brace at night or when pain increased. He was able to walk one mile. He was not unsteady. He had no history of falls. This disability impaired his ability to tie his shoes even when not flared-up. It did not impair his ability to work when not flared-up. He reported that he had missed three to four months of work over the last twelve month period. He reported that he did have episodes of incapacitation in the last twelve month period. Physical examination found that the Veteran was not in acute distress and did not have an antalgic gait. His cervical spine was non-tender. There was no edema, ecchymosis, or erythema. Axial loading did not reproduce pain. His range of motion was from zero to 35 degrees flexion, from zero to 25 degrees extension, full (45 degrees) bilateral lateral flexion, from zero to 60 degrees left rotation, and from zero to 40 degrees right rotation. This is a combined range of motion of 250 degrees. Repetitive testing produced pain, but not additional limitation of motion. There was no additional change due to pain, fatigue, weakness, lack of endurance, or incoordination. He had no postural deformities or ankylosis. A sensory examination found the bilateral upper and lower extremities intact to vibratory sensation and light filament sensation distally. A motor examination found full (5/5) strength, equally bilaterally, in the upper and lower extremities. His reflexes were normal. Straight leg testing was negative. A CT scan found mild degenerative changes of the cervical spine with a slight narrowing of the neural foramina. A MRI found minimal bulging discs at C5-6 and C6-7. The Veteran was diagnosed with degenerative disc disease of the cervical spine. A September 2008 private examination and consultation noted that although the Veteran was in no acute distress, he did appear to be in moderate pain, guarding the area of injury. There was tenderness noted from C3-T1 with decreased range of motion of approximately 20 to 30 percent in horizontal rotation and extension. Based on normal rotation of 80 degrees and normal extension of 45 degrees, this limitation is no less than 56 degrees bilateral lateral rotation and 32 degrees extension. His flexion was reduced approximately 10 percent, which, based on normal flexion of 45 degrees, is approximately 40 degrees. His horizontal rotation was most notably retarded on the right on looking to the right. He had decreased sensation noted on the dorsal aspect of both hands. He reported that he was unable to exercise due to pain and had gained weight. An October 2008 private examination report noted that although the Veteran was in no acute distress, he did appear to be in moderate pain, guarding the area of injury. He walked with a normal gait. He had some sitting intolerance. Tenderness of the cervical spine was elicited at C5-C7. His flexion was limited to 40 percent, extension to 20 percent, lateral bend to 40 percent, and rotation to 60 percent. Again referencing the normal range, this is 18 degrees flexion, 9 degrees extension, 18 degrees lateral flexion, and 48 degrees rotation, for a combined range of motion if 159 degrees. A November 2008 private examination report noted that although the Veteran was in no acute distress, he did appear to be in moderate pain, guarding the area of injury. There was tenderness in the neck and limitation of motion. A December 2008 private examination report noted the Veteran's complaints of worsening pain with occasional shooting pain down to his hand. He reported pain with chewing and pain with turning that sometimes caused "pins and needles" sensation in his hands. He had a normal gait and was able to sit and stand with normalcy. No signs of intolerance or significant pain behavior were noted. He had sensitive trigger point at C7-T1 that reproduced pain that shot up his neck. He had pain with forward flexion. There was tenderness also to palpation along the paravertebral musculature above C7 bilaterally. He had pain to the trapezius on both sides. He had full strength, intact sensation, and intact and symmetric reflexes. A July 2009 private examination report noted tenderness at C6-7 midline and to the bilateral splenius cervicis and capitis, right side greater than left. His range of motion was decreased in extension by five percent (to 43 degrees) and bilateral rotation by 10 percent (to 72 degrees). Another July 2009 private examination report noted the Veteran's complaints of aching in the neck and upper back and numbness in the left upper extremity. He rated his current pain as 6/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. An August 2009 private examination report noted the Veteran's complaints of aching, stabbing, and pins and needles in the neck. He rated his current pain as 5/10 with a one or two point variance depending on activities. The right shoulder had continued tenderness and loss of range of motion. A September 2009 private examination report noted the Veteran's complaints of aching on the back of the head and neck. He rated his current pain as 6/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 2+ tenderness noted in the cervical spine with right greater than left. Decreased sensation was noted. A November 2009 private examination report noted the Veteran's complaints of aching and stabbing in the neck; aching in the upper back; and numbness in the left hand. At the time of this evaluation, he rated his average pain at a 5/10 level with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 2+ tenderness noted in the cervical spine with range of motion loss. The right shoulder was positive for continued tenderness and range of motion loss. A December 2009 private examination report noted the Veteran's complaints of aching in the neck and numbness and burning in the left hand. At the time of this evaluation the patient was rating his pain at a 6/10 level with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. The Veteran's cervical spine and right shoulder were abnormal with limited ranges of motion. He had myofascial tenderness of the cervical spine and trigger point activity was consistent with the Travell Model. Palpatory tenderness persisted in one or more muscles of the shoulder's myotactic unit. A January 2010 private examination report noted the Veteran's complaints of pins and needles, stabbing, and aching in the head, neck, and upper back and burning in the left shoulder and left arm. At the time of this evaluation the patient was rating his pain at a 5/10 level with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. Myofascial tenderness was noted in the cervical spine as was significant myospasm. His range of motion of the cervical spine and the right shoulder were limited. Myofascial guarding was noted, but no muscle atrophy. A March 2010 private examination report noted the Veteran's complaints of aching, stabbing, and pins and needles in neck, right shoulder, and right upper back and burning and stabbing in right wrist with an average pain level of 3/10 with a one or two point variance depending on activities. There was 3+ tenderness in the cervical spine and he had range of motion loss in the right shoulder. A June 2010 private examination report noted the Veteran's complaints of headaches; pins and needles and aching in the neck and upper back; and numbness, pins and needles, and burning in the right arm with a pain level of 4/10. Physical examination found that the Veteran appeared to be in mild pain guarding the area of injury. Myofascial tenderness was noted in the cervical spine. His range of motion was limited. Spurling's test for upper extremity radiculopathy was positive. Phanel's and Tinel's sign tests were negative. A later June 2010 private examination report noted the Veteran's complaints of headaches described as aching, pins and needles, and stabbing and aching and burning in the right arm and hand with an average pain level of 5/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. His cervical spine was abnormal. Myofascial tenderness was noted in the cervical spine and the upper extremities. His range of motion was limited in the cervical spine and the upper extremities. Trigger point activity present in the cervical spine was consistent with the Travell Model. Motor strength in the upper extremities was abnormal. A July 2010 private orthopedic examination noted the Veteran's complaints of pain and "pins and needles" feeling in neck and right upper extremity and numbness in his right upper extremity. His cervical spine disability resulted in significant decreases in lifting, sitting, and standing ability, but not walking. There was tenderness to palpation over the right lower neck and right trapezius, but no specific tenderness over the right shoulder itself. His range of motion was limited by pain and stiffness. It was recorded to be zero to 45 degrees flexion, from zero to 35 degrees extension, zero to 40 degrees bilateral lateral flexion, from zero to 60 degrees left rotation, and from zero to 65 degrees right rotation. His bilateral shoulders, elbows, and wrists had satisfactory ranges of motion. Manual muscle testing of the major motors of the neck upper torso and both upper extremities did not reveal any weakness. Deep tendon reflexes of the triceps, biceps, and brachioradialis were hypoactive and symmetrical. Sensory examination to light touch was intact throughout both upper extremities. There were no long tract findings noted in either upper extremity. There was no muscle atrophy. The Veteran was diagnosed with cervical strain without evidence of radiculopathy. This examiner opined that the Veteran would be able to work modified duty eight hours a day with lifting, pushing, carrying, and pulling limited to 15 pounds. A July 2010 private examination report noted the Veteran's complaints of aching in the back of the head and neck; aching, burning, and pins and needles in the right shoulder and low back; and numbness in the right arm with an average pain level of 6/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 3+ tenderness in the cervical spine with range of motion loss. An August 2010 private examination report noted the Veteran's complaints of stabbing, aching, and burning in the back of head, neck, right shoulder, and upper back; aching in the mid-back and low back; and numbness and burning in the right elbow and forearm with an average pain level of 5/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 2+ tenderness in the cervical spine. The Veteran's right shoulder was problematic from a range of motion standpoint. Myofascial guarding was noted, but no muscle atrophy. A September 2010 private examination report noted the Veteran's complaints of burning, stabbing, and aching in the neck and upper back and numbness, aching, and burning in the right arm and forearm with an average pain level of 5/10 with a one or two point variance depending on activities. Physical examination found that the Veteran was in no apparent pain. He had full range of motion with pain in all directions other than left lateral bending and left-sided twisting. He was tender to palpation from his occiput down to the C6 level over the spinous processes, bilateral paraspinals, and over palpable trigger points in the right scalene trapezius and rhomboid regions. Sensation was normal in the bilateral upper extremities. He had full muscle strength. Deep tendon reflexes were trace in the bilateral cubital tunnels that radiate down the medial aspect of the forearms. He had a negative left-sided Spurling's and Thiel's at the bilateral Guyon's canals and left carpal tunnel. He had a negative bilateral facet loading maneuver and Adson's test. A later September 2010 private examination report noted the Veteran's complaints of aching, stabbing, and pins and needles in the head and neck and numbness and burning in the right shoulder with an average pain level of 5/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in mild to moderate pain guarding the area of injury. There was 3+ tenderness noted on the cervical spine with decreased range of motion. There was 4+ tenderness noted with myofascial findings. Decreased sensation was noted. A November 2010 private examination report noted the Veteran's complaints of aching and stabbing in the head, neck, right shoulder, upper back, mid back, and low back and burning in the right arm with an average pain level of 5/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 3+ tenderness noted on the cervical spine. Decreased sensation in the right upper extremity was noted. A December 2010 private examination report noted the Veteran's complaints of stabbing, pins and needles, and aching in the neck; burning and aching in the upper to mid back; and burning, numbness, and aching in the right arm with an average pain level of 6/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 2+ tenderness noted on the cervical spine with decreased range of motion. His right shoulder had decreased range of motion and decreased strength. A January 2011 private examination report noted the Veteran's complaints of neck pain and progressive upper extremity numbness following a work injury. At the time of this visit, the Veteran reported pins and needles, stabbing, and aching in the neck and upper back and aching, numbness, and burning in the right arm and right wrist with an average pain level of 5/10 with a one or two point variance depending on activities. Physical examination found that the Veteran appeared to be in moderate pain guarding the area of injury. There was 3+ tenderness noted on the left side of the cervical spine and in the left shoulder with decreased range of motion. Slight decreased sensation was noted. A March 2011 private examination report noted the Veteran's complaints of stabbing, pins and needles, and aching pain in the neck and aching, numbness, and burning in the right arm. Physical examination found painful limited range of motion in the neck in all planes except for rotation. He had a trigger point at the splenius capitis on the bilateral sides. At his May 2011 hearing, the Veteran reported that his cervical spine disability had gotten worse. He underwent physical therapy for this disability. He reported numbness and tingling in his right arm and painful motion of the neck. He could only sit for 30 to 45 minutes at a time. In October 2011, the Veteran underwent another VA examination in conjunction with this claim. At that time, he reported flare-ups that caused him to leave work two to three times per month. His initial range of motion was from zero to 45 degrees flexion with objective evidence of pain beginning at 45 degrees, from zero to 40 degrees extension with objective evidence of pain beginning at 40 degrees, from zero to 40 degrees right lateral flexion without objective evidence of pain, from zero to 25 degrees left lateral flexion with objective evidence of pain beginning at 25 degrees, from zero to 55 degrees right lateral rotation without objective evidence of pain, and from zero to 30 degrees left lateral rotation with objective evidence of pain beginning at 30 degrees. After repetitive testing, his range of motion was from zero to 45 degrees flexion, from zero to 40 degrees extension, from zero to 40 degrees right lateral flexion, from zero to 25 degrees left lateral flexion, from zero to 55 degrees right lateral rotation, and from zero to 30 degrees left lateral rotation. This is a combined range of motion of 235 degrees. The Veteran did not have functional loss or impairment of the cervical spine. He had localized tenderness or pain to palpation of the cervical spine. He did not have guarding or muscle spasm of the cervical spine. He had full muscle strength of the bilateral upper extremities and no atrophy. His reflexes were absent in the bilateral triceps and brachioradialis, but normal in the bilateral biceps. His bilateral upper extremities were normal for sensation to light touch testing. He was found not to have radiculopathy of the left upper extremity, but he had mild radiculopathy of the right upper extremity in that he reported paresthesias and/or dysesthesias and numbness. The Veteran did not have any other neurologic abnormalities related to this disability. He did not have intervertebral disc syndrome (IVDS) or any incapacitating episodes over the past twelve months. He did not use any assistive device as a normal mode of locomotion. This disability did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. He had no associated scars. Imaging studies did not find arthritis or vertebral fracture, but did note a straightened cervical spine likely due to muscle spasm. This disability impacted the Veteran's ability to work in that he had to leave work early two or three times per month. A July 2012 private imaging report found multilevel degenerative changes of the cervical spine with the level of worst disease being C6-7. A September 2012 progress note reflects cervical radiculopathy into the Veteran's right shoulder. In October 2012, the Veteran submitted a disability based questionnaire (DBQ) completed by Dr. N.D. This DBQ noted the Veteran's complaints of severe neck pain and headaches, limiting mobility and ability to perform most activities. His initial range of motion was from zero to 20 degrees flexion, from zero to 5 degrees extension with objective evidence of pain beginning at 20 degrees, from zero to 20 degrees right lateral flexion, from zero to 15 degrees left lateral flexion, and from zero to 30 degrees bilateral lateral rotation. After repetitive testing, his range of motion was from zero to 15 degrees flexion, from zero to 5 degrees extension, from zero to 10 degrees right lateral flexion, from zero to 15 degrees left lateral flexion, and from zero to 25 degrees bilateral lateral rotation. This is a combined range of motion of 95 degrees. The Veteran had functional loss or impairment in that he had less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, and interference with sitting, standing, and/or weight bearing. He had localized tenderness or pain to palpation of the cervical spine and an abnormal spinal contour. He had full muscle strength of the bilateral upper extremities and no atrophy. His upper extremities exhibited hypoactive reflexes in the biceps, triceps, and brachioradialis bilaterally. Sensory examination was normal for the left upper extremity but the Veteran's right upper extremity had decreased sensation to light touch in the shoulder, inner/outer forearm, and hand/fingers. The Veteran was found to have severe radiculopathy of the right upper extremity involving the upper and middle radicular nerve groups that was characterized by severe constant pain, paresthesias and/or dysesthesias, and numbness. He was also found to have mild radiculopathy of the left upper extremity involving the upper and middle radicular nerve groups that was characterized by mild constant pain, paresthesias and/or dysesthesias, and numbness. The Veteran had intervertebral disc syndrome but had not had any incapacitating episodes over the prior twelve month period. He did not use an assistive device as a normal mode of locomotion. This disability did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. He had no associated scars. Dr. N.D. found that the Veteran was unable to have gainful employment due to the pain and limitation of activity associated with this disability. In September 2014, the Veteran underwent another VA examination in conjunction with this claim. At that time, he complained of constant neck pain with radiculopathy with tingling of the right upper extremity. He reported flare-ups of excruciating pain each morning lasting 30 to 45 minutes that resolved with stretching. His initial range of motion measurements were from zero to 45 degrees or more flexion with objective evidence of pain beginning at 45 degrees or greater, from zero to 30 degrees extension with objective evidence of pain beginning at 30 degrees, from zero to 30 degrees bilateral lateral flexion with objective evidence of pain beginning at 30 degrees, and from zero to 45 degrees bilateral lateral rotation with objective evidence of pain beginning at 45 degrees. The Veteran was able to perform repetitive testing. Post-test forward flexion ended at 45 degrees or greater. Post-test extension ended at 30 degrees. Post-test right lateral flexion ended at 30 degrees. Post-test left lateral flexion ended at 25 degrees. Post-test lateral rotation ended at 45 degrees bilaterally. This was a combined range of motion of 220 degrees. The Veteran's functional loss expressed in limitation of motion was from zero to 45 degrees flexion, from zero to 30 degrees extension, from zero to 30 degrees bilateral lateral flexion, and from zero to 45 degrees bilateral lateral rotation. This was a combined range of motion of 225 degrees. There was no additional limitation of motion of the cervical spine following repetitive-use testing. The Veteran had functional loss or functional impairment of the cervical spine in that he had less movement than normal and pain on movement. He had localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. He did not have muscle spasm or guarding of the cervical spine. He had full muscle strength and no muscle atrophy. His reflexes were absent in the bilateral biceps and brachioradialis and hypoactive in the bilateral triceps. His bilateral upper extremities were normal for sensation to light touch testing. He was found not to have radiculopathy of the left upper extremity, but he had moderate radiculopathy of the right upper extremity involving the middle and lower radicular groups and characterized by moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. He had no other signs or symptoms of radiculopathy. There was no ankylosis of the spine. The Veteran did not have any other neurologic abnormalities related to this disability. He had intervertebral disc syndrome (IVDS), but had not had any incapacitating episodes over the past twelve months. He regularly used a Velcro pneumatic cervical brace for sleeping. This disability did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. He had no associated scars. Arthritis was shown on imaging studies. He did not have a vertebral fracture with loss of 50 percent or more of height. This disability impacted the Veteran's ability to work and he had medically retired in 2008. A December 2015 private vocational assessment noted the Veteran's complaints of neck pain flare-ups with any increased activity. He did some very light household chores, but mostly spent his time watching television. The Veteran had gained approximately 200 pounds as a result of inactivity, which caused increased ankle pain. He stated that he has to sleep sitting up because he is unable to get comfortable. He was unable to sleep much at night, so instead he napped during the day. The Veteran noted that he is lucky to get two to three hours of sleep at a time. This examiner concluded that the Veteran's service connected disabilities precluded him from securing and following substantially gainful employment due to his physical limitations, sensitivity to light including a computer monitor, and likely frequent absenteeism. During the appeal period, the evidence shows a range of limitation of motion of the cervical spine. The October 2012 examination report showed the most limitation of motion with flexion being limited to 15 degrees after repetitive testing. Although the other range of motion testing results do not show such severe limitation, when viewed in the light most favorable to the Veteran, the Board interprets the results of the October 2012 examination report as demonstrating the severity of the Veteran's disability during a period of a flare-up. Thus, the Board finds these results support awarding a rating of 30 percent throughout the entire appeal period. See 38 C.F.R. § 4.71a, DC 5242. A higher rating is available for unfavorable ankylosis of the entire cervical spine. Id. However, at no point during the appeal period has ankylosis of the cervical spine been noted. Thus, a rating higher than 30 degrees is not warranted. As such, a rating of 30 percent, but no more, is awarded for degenerative disc disease of the cervical spine. To the extent that the Veteran has been diagnosed with IVDS, this disability has not been shown to result in any incapacitating episodes as defined by the regulations. Thus, a higher rating is not available under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DC 5243. Neurologic Abnormalities VA regulations provide that in addition to orthopedic considerations, any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. The Veteran is currently service-connected for right upper extremity radiculopathy. After resolving any benefit of the doubt in favor of the Veteran, the Board finds that a separate rating for radiculopathy of the left upper extremity is also warranted. The evidence of record is inconsistent with respect to whether the Veteran has radiculopathy of the left upper extremity. For the most part, the Veteran has complained of pain, tingling, and numbness in the bilateral upper extremities, although he has more consistently reported these symptoms in the right upper extremity rather than the left. Moreover, the July 2010 examination report reflected cervical strain "without evidence of radiculopathy"; the October 2011 examination report reflected a finding of no radiculopathy of the left upper extremity; and the September 2014 examination report reflected that the examiner found no radiculopathy of the left upper extremity. On the other hand, a June 2008 EMG report noted some impairment of the bilateral median nerves; a June 2010 examination report noted that Spurling's test for upper extremity radiculopathy was positive; and an October 2012 "disability based questionnaire" (DBQ) noted mild radiculopathy of the left upper extremity involving the upper and middle radicular nerve groups characterized by mild constant pain, paresthesias and/or dysesthesias and numbness. Thus, the Board finds that the evidence is at least in a state of equipoise as to whether the Veteran has radiculopathy of the left upper extremity related to his cervical spine disability. Accordingly, the Board finds that a separate rating is warranted for the Veteran's left upper extremity radiculopathy. Radiculopathy of the right upper extremity has been rated under hyphenated diagnostic code 8599-8510 to be 20 percent disabling effective October 12, 2011. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. DC 8510 provides rating criteria of complete and incomplete paralysis of the upper radicular group (fifth and sixth cervicals). 38 C.F.R. § 4.124a. Mild incomplete paralysis is rated 20 percent disabling for both the major and minor side. 38 C.F.R. § 4.124a, DC 8510. Moderate incomplete paralysis is rated as 40 percent disabling on the major side and 30 percent disabling on the minor side. Id. Severe incomplete paralysis of the radicular group is rated 50 percent disabling on the major side and 40 percent disabling on the on the minor extremity. Id. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected, warrants a 70 percent rating for the major side and a 60 percent rating for the minor side. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree. Id. The Veteran's left upper extremity radiculopathy has manifested as pain, numbness, tingling and hypoactive deep tendon reflexes. The Board finds that this is consistent with the criteria for a mild degree of left upper extremity radiculopathy under DC 8510 and, therefore, is awarding the Veteran a separate 20 percent rating for the entire appeals period. See 38 C.F.R. § 4.124a, DC 8510. The next higher rating of 30 percent requires a finding of moderate incomplete paralysis. See id. This is not shown here. The Veteran's symptoms are predominantly sensory. Although he reported weakness at the time of the August 2008 VA examination and the June 2010 private record noted abnormal strength, his motor strength has otherwise been consistently full on testing with no evidence of atrophy. Moreover, several of the examination reports note no sensory deficits in the left upper extremity. Thus, a rating of 20 percent, but no more, for cervical radiculopathy of the left upper extremity is warranted. The Veteran's right upper extremity radiculopathy has manifested as pain, numbness, hypoactive deep tendon reflexes, and intermittent reports of decreased range of motion, decreased sensation, and decreased motor strength. The Board finds that this is consistent with the criteria for a moderate degree of right upper extremity radiculopathy under DC 8510 and, therefore, is awarding the Veteran a separate 40 percent rating for the entire appeals period as the Veteran is right hand dominant. See 38 C.F.R. § 4.124a, DC 8510. The next higher rating of 50 percent requires a finding of severe incomplete paralysis. See id. This is not shown here. Notably, the Veteran is not shown to have severe limitation of motion or loss of motor strength. In fact, most of the medical evidence shows full motor strength in the right upper extremity. Although the October 2012 DBQ found severe radiculopathy of the right upper extremity, the symptoms described therein (decreased sensation, hypoactive deep tendon reflexes, moderate numbness, severe constant pain, and severe parasthesias/dysthesias) do not reflect that level of severity. Thus, a rating of 40 percent, but no more, for cervical radiculopathy of the right upper extremity is warranted. The Board has also considered whether separate compensation is warranted for other neurological symptoms. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The objective medical evidence does not include any bladder or bowel dysfunction or other neurological symptoms. Aside from the bilateral upper extremity radiculopathy addressed above, no neurologic abnormalities have been associated with the Veteran's degenerative disc disease of the cervical spine. Thus, separate ratings for such are not warranted. See 38 C.F.R. § 4.71a, Note (1). Extraschedular Considerations Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2015). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the rating criteria reasonably capture the Veteran's symptoms including pain, limitation of motion, weakness, tingling and decreased sensation. In this regard, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45 , 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, to include limitation of motion, decreased grip strength, etc. Additionally, the schedular criteria provide higher ratings for more severe symptoms such as ankylosis and severe incomplete paralysis of the upper radicular group, none of which is shown here. Consequently, the Board finds that referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." As noted below, a TDIU is being awarded to the Veteran in this decision. The Federal Circuit in Johnson indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. §3.321(b)(1) performs a "gap-filling" function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities is nonetheless inadequately represented. Id. As the Veteran is being granted a TDIU in this decision, he is deemed to have total unemployability and there is no "gap" to fill by section 3.321(b). Therefore, the Board finds that further discussion of an extraschedular rating for his cervical spine disability is not warranted in this case. For these reasons, the Board finds that the preponderance of evidence is against referring this case for extraschedular consideration. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. TDIU The Veteran has claimed that his service connected disabilities have rendered him unemployable. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for residuals of a right ankle fracture (20 percent), degenerative disc disease of the cervical spine (30 percent), radiculopathy of the right upper extremity (40 percent), radiculopathy of the left upper extremity (20 percent), and headaches (10 percent). The degenerative disc disease of the cervical spine, the bilateral upper extremity radiculopathy, and headaches all arise from a common etiology for a combined schedular rating of 70 percent. See 38 C.F.R. § 4.25. Therefore, the Veteran is eligible for the award of a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). The record shows that the Veteran last worked in December 2008, when he was a corrections officer with the Bureau of Prisons. Both the VA and private records have noted that the Veteran is medically retired and unable to work due to his cervical spine disability. See e.g., October 2012 DBQ, September 2014 VA examination. Accordingly, the Board finds that entitlement to a TDIU is warranted. ORDER An increased rating to 30 percent, but not more, for degenerative disc disease of the cervical spine is granted. A separate 40 percent rating for radiculopathy of the right upper extremity is granted. A separate 20 percent rating for radiculopathy of the left upper extremity is granted. TDIU is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs