Citation Nr: 1752798 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-02 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for C5-C6 degenerative disc disease (DDD) with spondylolysis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1991 to March 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2015 and April 2017, the Board remanded this appeal for further development. A review of the record reveals that outstanding VA treatment records have been associated with the claims file and the Veteran was afforded a new VA examination for his cervical spine disability in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). The examination report contains range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing. Therefore, there has been substantial compliance with the Board's prior remand directives and these issues are properly before it. See Stegall v. West, 11 Vet. App. 265 (1998). With respect to a TDIU, the Board notes that in March 2010, the Veteran filed an application for increased compensation based on unemployability and indicated that his cervical spine disability prevents him from securing and following substantially gainful employment. The issue was initially adjudicated by the agency of original jurisdiction (AOJ) in November 2011 and therefore, it is properly before the Board. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's cervical spine disability was not manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined cervical spine range of motion not greater than 170 degrees; muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. From March 16, 2010 to April 17, 2015, the record evidence demonstrates that the Veteran had mild left upper extremity radiculopathy. The evidence shows he experienced no symptoms of left upper extremity radiculopathy after that date. 3. The Veteran's service connected disabilities alone do not render him unable to secure or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for C5-C6 degenerative disc disease (DDD) with spondylolysis have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2016). 2. The criteria for a rating of 20 percent from March 16, 2010 to April 17, 2015 for cervical radiculopathy of the left upper extremity associated with the service-connected cervical spine disability have been met; thereafter a 0 percent rating is assigned. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.69, 4.124a, DC 8510 (2016). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107 (West 2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that neither the Veteran, nor his representative, has alleged any deficiency in VA's duty to notify or assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that he is entitled to a higher rating for his cervical spine disability. Service connection for a cervical spine disability was granted by an August 2005 rating decision. A 10 percent rating was assigned effective May 26, 2004, the date the Veteran's claim was received. In October 2009, the Veteran filed an increase rating claim, indicating that he felt his C5-C6 spondylolysis and cervical radiculopathy had worsened in severity since he was last evaluated. By a December 2009 rating decision, the Veteran's 10 percent rating for his cervical spine disability was continued. His cervical spine disability is rated under 38 C.F.R. §4.71a, Diagnostic Codes 5242-5243, General Rating Formula for Diseases and Injuries of the Spine (2016). A rating of 10 percent is warranted when there is 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 there is 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 height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A rating of 20 percent is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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 rating of 30 percent is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A rating of 40 percent is warranted when there is unfavorable ankylosis of the entire cervical spine. Id. A rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. 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. Id. at Note 2. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 10 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A rating of 20 percent is warranted when there is incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there is incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a rating of 60 percent is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A note following Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2016). 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 for that rating. 38 C.F.R. § 4.7 (2016). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (diagnostic codes that provide ratings solely based on loss of range of motion must consider functional loss and factors of joint disability attributable to pain). The Board has considered the entire record, including the Veteran's VA clinical records and his statements. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will only discuss the evidence pertinent to the rating criteria and the current disability Cervical Spine The Veteran's VA treatment records are replete with complaints of neck pain. He was afforded a VA examination for his cervical spine in December 2009. He reported fatigue, decreased motion, pain, and weakness. He specifically denied spasms and stiffness. He stated his pain began at the base of the neck and radiated to the lateral aspect of the left upper arm. He reported that his pain was moderate, lasted for minutes, and occurred daily. No flare-ups were reported and he denied any incapacitating episodes. He had normal gait and there were no spinal curvatures. On objective examination, there was no guarding, weakness, or tenderness. Examination of the upper extremities showed vibration was 2/2, pinprick 2/2, light touch 2/2, and position sense 2/2. The Veteran had active and passive flexion to 45 degrees with pain beginning at 45 degrees and ending at 45 degrees. There was pain on repetitive use but no loss of motion. He had extension on active and passive motion to 45 degrees with pain beginning and ending at 45 degrees. There was pain on repetitive use but no loss of motion. He had bilateral flexion on active and passive motion to 45 degrees with pain beginning and ending at 45 degrees. There was pain on repetitive use with no loss of motion. He had bilateral lateral rotation to 80 degrees on active and passive motion with pain beginning and ending at 80 degrees. There was no pain or loss of motion on repetitive use. The examiner stated that on repetitive use, range of motion values were unchanged from baseline values reported and no pain, fatigue, weakness, or incoordination was noted. The diagnosis was C5-C6 degenerative disc disease with spondylolysis and history of cervical radiculopathy with no clinical evidence of radiculopathy on examination. The Veteran was afforded another VA examination in March 2010. A diagnosis of cervical spondylolysis with degenerative disc disease and left cervical radiculopathy was noted. He reported that he experienced a constant dull ache in his cervical spine which would become sharp and more severe and distinct at times. The pain would increase with movement, carrying, or lifting. He denied any alleviating factors. He stated he did not experience any incapacitating episodes of the neck in the 12 months prior to examination. On objective examination, the Veteran had forward flexion to 35 degrees with pain beginning at 25-35 degrees; extension to 20 degrees with pain from 10-20 degrees; left and right lateral flexion to 25 degrees with pain from 20-25 degrees; left lateral rotation to 50 degrees with pain from 40-50 degrees; and right lateral rotation to 65 degrees with pain from 60-65 degrees. The Veteran complained of stiffness and flare-ups of neck pain occurring several times a week which were moderate in severity, lasting up to several hours. Precipitating factors were movement, carrying, lifting, or day-to-day activities. VA treatment records from May 2010 show that the Veteran presented to physical therapy with cervical pain. He stated he experienced flares in that he would wake up two to three times per night and that when he rotated his head to the left, pain shot down his right shoulder. The examiner noted that the Veteran's motion was limited in that he stated he was unable to perform head rotation. On examination, the Veteran had left rotation to 35 degrees and right rotation to 45 degrees. He could side bend to 25 degrees on the left and 30 degrees on the right. He had forward flexion to 50 degrees and extension to 50 degrees. The three week goal was to increase the Veteran's cervical range of motion by 5 degrees in order to improve his ability to turn his head to look while driving. The six week goal was to increase range of motion by 10 degrees. The Veteran was afforded another VA examination in September 2011. He reported that since his previous examination in March 2010, he had more stiffness and pain in his neck going to his upper left arm above his elbow, which occurred with overexertion. He reported that he always had baseline neck stiffness and pain. He stated that during flare-ups he could not move his head very much. On objective testing, the Veteran had flexion to 45 degrees with no objective evidence of painful motion; extension to 30 degrees with painful motion beginning at 30 degrees; right lateral flexion to 30 degrees with painful motion beginning at 30 degrees; left lateral flexion to 30 degrees with no objective evidence of painful motion; right lateral rotation to 60 degrees with objective evidence of painful motion beginning at 55 degrees; and left lateral rotation to 55 degrees, with no objective evidence of painful motion. On repetitive use, the Veteran's range of motion was unchanged. The examiner noted that the Veteran had radicular symptoms. He experienced moderate intermittent pain and mild paresthesias in his left upper extremity. The examiner stated there was involvement of the C5/C6 nerve roots and the severity of the radiculopathy was mild. The examiner noted that the Veteran had intervertebral disc syndrome (IVDS) of the cervical spine but did not experience any incapacitating episodes in the 12 months prior to examination. On VA examination in April 2015, the Veteran reported that since his last VA examination, he did not have any new neck injuries or surgeries. He reported having off and on neck pain since the military with no change except certain movements of the neck caused it to hurt. He stated he did not experience flare-ups. He stated "I get pain in [the] lower neck region when I try to look up more than 40 degrees, sometimes this pain may go down my entire spine, not to my arm. Both arms are fine." On objective testing, he had forward flexion to 45 degrees; extension to 40 degrees; right lateral flexion to 40 degrees; left lateral flexion to 40 degrees; right lateral rotation to 60 degrees; and left lateral rotation to 55 degrees. There was no pain noted on examination. There was no pain on weight bearing and no objective evidence of localized tenderness or pain on palpation of the joint. There was no additional loss of motion on repetitive use. There was no objective evidence of radiculopathy on examination and no other neurological abnormalities were noted. The examiner stated that the Veteran did not have IVDS of the cervical spine. The Veteran was afforded another VA examination in June 2017. He reported that since service, his pain has been off and on and worsened gradually over the years. He stated it is constant and the severity of the pain is 5-6 on a scale of 1-10. He stated "when I bend my neck forward to wash or if I bend my neck at a 45 degree angle backwards, then I will receive a sharp pain that goes down my spinal cord and I will receive a sharp pain in the head. My neck twisting is limited. Lifting is terrible." He reported that he did not experience flare-ups. On objective examination for both active and passive motion, he had flexion to 45 degrees; extension to 40 degrees; right lateral flexion to 40 degrees; left lateral flexion to 40 degrees; right lateral rotation to 60 degrees; and left lateral rotation to 55 degrees. With weight-bearing, the Veteran had flexion to 40 degrees; extension to 35 degrees; right lateral flexion to 35 degrees; left lateral flexion to 35 degrees; right lateral rotation to 35 degrees and left lateral rotation to 35 degrees. Without weight-bearing, he had flexion to 45 degrees; extension to 40 degrees; right lateral flexion to 40 degrees; left lateral flexion to 40 degrees; right lateral rotation to 60 degrees; and left lateral rotation to 55 degrees. The examiner stated that there was evidence of pain on active motion, passive motion, in weight bearing, and without weight bearing. The opposing joint was not examined as "evaluation of contralateral joint is not applicable to the spine which is a midline structure". The examiner stated that pain on examination caused functional loss during extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of motion. Sensory examination was normal and the examiner stated that the Veteran did not experience any radicular pain or symptoms due to radiculopathy. No neurological abnormalities were noted. The Veteran was not prescribed bedrest in the 12 months prior to examination. Based on the overall evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected cervical spine disability was not warranted at any time during the appeal period. Here, the overall evidence of record does not show any findings of range of motion or other findings that would warrant a rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. That is, the overall evidence does not show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or combined cervical spine range of motion not greater than 170 degrees, even with consideration of pain on motion and stiffness, and other DeLuca factors. Also, there is no indication in any medical records of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. Moreover, there is no contention or indication that he is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome. While the September 2011 VA examiner indicated that the Veteran had a diagnosis of intervertebral disc syndrome, no periods of bedrest have been shown at any time during the appeal period. The Board observes that the Veteran has complained of neck pain and stiffness to VA examiners. Additionally, the Board observes the Veteran's reports in September 2011 that during flare-ups he "cannot move his head very much." Later VA treatment records confirm that during flare-ups the Veteran experienced an increased level of pain when turning his head to the left, such as when he was driving. However, even assuming that the Veteran had no range of motion on left lateral rotation, a higher rating would not be warranted. At worst, the objective testing shows that the Veteran had flexion to 45 degrees; extension to 30 degrees; right lateral flexion to 30; left lateral flexion to 30; and right lateral rotation to 45. Thus, at worst, his combined range of motion, even assuming that he had absolutely no ability to rotate his head to the left, which has not been shown at any time during the appeal period, would be 180 degrees. In order to warrant a 20 percent rating, the Veteran's combined range of motion of the cervical spine would have to be 170 degrees or less, which simply has not been demonstrated. The Board additionally notes that on most recent VA examination in April 2015 and June 2017, the Veteran has denied flare-ups. It is clear that the Veteran experiences pain and some functional loss such as some loss of motion due to his neck pain. The Board accepts the Veteran's statements regarding pain as both competent and credible. However, even accepting these statements, such functional loss does not more nearly approximate the criteria contemplated by the assignment of a higher rating under §§ 4.40, 4.45 and 4.49. The Board has also considered whether a separate rating for associated objective neurological abnormalities is warranted. In this regard, the evidence shows that the Veteran experienced left upper extremity radiculopathy during the appeal period. At no time during the appeal period has the Veteran experienced bladder impairment, bowel impairment, or any other neurological abnormalities as a result of his service-connected cervical spine disability. For the Veteran's left upper extremity radiculopathy, the Rating Schedule for Diseases of the Peripheral Nerves contains relevant diagnostic codes. See 38 C.F.R. § 4.124a (2016). The term "incomplete paralysis" as used therein indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, such ratings are combined with application of the bilateral factor. Id. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016). Upper extremity ratings also depend on whether the disabled extremity is the major or minor extremity. The major extremity is the one predominantly used by the Veteran. Only one extremity may be considered major. 38 C.F.R. § 4.69 (2016). The VA examination reports document that the Veteran's dominant hand is his right hand. See e.g. April 2015 VA Examination Report. Therefore, his right upper extremity is his major extremity and his left upper extremity is his minor extremity. On VA examination in September 2011, the examiner stated that there was involvement of the C5/C6 nerve roots. As DC 8510 addresses the upper radicular group (fifth and sixth cervicals), the Veteran would most appropriately be rated under that diagnostic code. Under DC 8510, for the minor extremity, a 20 percent rating is assigned for mild incomplete paralysis of the upper radicular group, a 30 percent rating is assigned for moderate incomplete paralysis of the upper radicular group, a 40 percent rating is assigned for severe incomplete paralysis of the upper radicular group, and a 60 percent rating is assigned for complete paralysis of the upper radicular group (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected). As noted in the September 2011 VA examination, the Veteran's cervical radiculopathy has resulted in mild incomplete paralysis of the upper radicular group. On VA examination in March 2010, left upper extremity radiculopathy was noted; however, the examiner did not opine as to the level of severity. On VA examination in September 2011, the Veteran reported experiencing moderate intermittent pain and mild paresthesias in his left upper extremity. He denied experiencing constant pain or numbness. Thus, the Board finds the September 2011 VA examiner's opinion that the Veteran's left upper extremity radiculopathy was mild highly probative. Importantly, the Board notes that on VA examination in April 2015 and in June 2017, the examiner specifically found that the Veteran did not experience any radicular pain or symptoms due to radiculopathy. Additionally, VA treatment records from May and June 2016 show sensory examination within normal limits. His light touch, pinprick, temperature, position, and vibration were all within normal limits. Therefore, the Board finds that a separate 20 percent rating for left upper extremity radiculopathy is warranted from March 16, 2010, the date left upper extremity radiculopathy was shown on VA examination to April 17, 2015, the date the evidence objectively establishes that radiculopathy was not present. There is no evidence of radiculopathy prior to March 16, 2010. Additionally, at no point during the appeal period has right upper extremity radiculopathy been demonstrated. Thus, a separate rating for left upper extremity radiculopathy only from March 16, 2010 to April 17, 2015 is warranted. Thereafter, a 0 percent rating should be assigned. The Board has also considered all potentially applicable provisions of the rating schedule, whether or not they have been raised by the Veteran or his representative, as required by Schafrath, 1 Vet. App. 589. However, the Board has found no section that provides a basis upon which to assign an increased disability rating in excess of 10 percent for the Veteran's cervical spine disability. The preponderance of the evidence supports a separate, 20 percent disability rating for left upper extremity radiculopathy from March 16, 2010 to April 17, 2015, and to that extent, the claim is granted. See 38 U.S.C. § 5107(a); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. Total Disability Rating Based on Individual Unemployability Total disability ratings for compensation may be assigned, when the disabled person 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 is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). In this case, the Veteran is service connected for arthritis of the left wrist due to trauma, rated as 10 percent disabling; degenerative disc disease with spondylolysis and history of cervical radiculopathy, rated as 10 percent disabling; and from March 16, 2010 to April 17, 2015, is now service-connected for left upper extremity radiculopathy, rated as 20 percent disabling. At no point during the appeal period has the Veteran met the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, the claim may still be referred to the Director of Compensation Services for assignment of an extraschedular rating if the evidence of record shows that the Veteran is "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). The issue then becomes whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Veteran has worked as a truck driver, ground keeper, and Veterans representative intern. See March 2010 TDIU Application. He completed a bachelor's degree in business. On VA examination in December 2009, the examiner stated that the Veteran's cervical spine disability did not have any significant effects on his employment. It did however mildly affect his ability to do chores, exercise, his recreation, and travel. It had a severe impact on his ability to participate in sports. On VA examination in March 2010, the Veteran reported that his neck pain, left arm pain, and balance issues were a major factor in him losing his job. He stated that he was less productive at work and was let go once his supervisor discovered his medical condition. He stated that his neck disability made it difficult for him to find a job and his balance problem made that considerably even more difficult. The examiner then opined that the Veteran's gait imbalance was not due to the Veteran's service-connected cervical spine disability. Instead, the Veteran had cerebellar ataxia with a history of seizure disorder. The examiner stated that the Veteran's issues were likely related to a problem at the midbrain or cerebellar level and not likely at the level of the spinal cord and his service-connected cervical spine disability would not cause dysfunction at the midbrain or cerebellar level. In a November 2011 VA addendum opinion the examiner opined that the Veteran's service-connected disabilities should not preclude light duty or sedentary employment. He stated that strenuous physical employment would be limited as the Veteran had limitation of motion and could not do heavy lifting due to his neck pain. The Veteran is in receipt of Social Security Disability benefits primarily because of his seizure disorder and secondarily because of a low back condition. As noted above, the Veteran is not service-connected for either of these conditions. On VA examination in April 2015, the Veteran stated "if it was for my neck only, no epilepsy, I would be working." Based on the above evidence, the Board finds that a TDIU is not warranted. The Veteran has held both sedentary employment as well as employment that required physical labor. While the Board does not dispute that he could not do heavy lifting due to his neck pain, there is nothing in the evidence of record to suggest that he would be precluded from sedentary employment or light duty work as a result of his service-connected disabilities. The evidence indicates that the Veteran holds a bachelor's degree in business. Further, the Veteran, by his own statements, has admitted that it is not his service-connected cervical spine disability that precludes him from employment and instead it is his non-service connected seizure disorder. Thus, there is no finding of unemployability due to service connected disabilities upon which referral to the Director of Compensation Services can be based and TDIU is not warranted. ORDER Entitlement to a rating in excess of 10 percent for a cervical spine disability with a history of radiculopathy is denied. Entitlement to a separate 20 percent rating for left upper extremity radiculopathy from March 16, 2010 to April 17, 2015, is granted. Thereafter, a 0 percent rating is assigned. Entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs