Citation Nr: 1753328 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-02 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent disabling for service connected total left hip replacement due to traumatic arthritis (left hip disability). 2. Entitlement to an evaluation in excess of 20 percent disabling for service connected cervical spine degenerative joint and disc disease (cervical spine disorder) prior to February 3, 2017, and in excess of 10 percent thereafter. 3. Entitlement to an evaluation in excess of 40 percent disabling for service-connected right (dominant) upper extremity radiculopathy prior to July 20, 2015, and in excess of 20 percent thereafter. 4. Entitlement to an evaluation in excess of 30 percent for service-connected left (non-dominant) upper extremity radiculopathy prior to July 20, 2015, and in excess of 20 percent thereafter. 5. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to July 1990. These matters come before the Board on appeal from rating decisions dated by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a December 2009 rating decision, the RO increased the rating for the Veteran's total left hip replacement from 30 percent disabling to 50 percent disabling, increased both upper extremity radiculopathy ratings to 20 percent, and established a 20 percent rating for the Veteran's cervical spine disorder. The October 2010 RO rating decision increased the rating for right upper extremity radiculopathy to 40 percent and left upper extremity to 30 percent effective. The May 2011 RO rating decision decreased the cervical spine disorder rating to 10 percent effective January 7, 2011, although it appears that this reduction was never put into effect and the rating remained at 20 percent. The July 2015 RO rating decision decreased both upper extremity radiculopathy ratings to 20 percent, effective July 20, 2015. In the February 2017 RO rating decision the Veteran's cervical spine disorder rating was reduced to 10 percent, effective February 03, 2017. As documented above there have been multiple rating decisions that include increases and stages of the disability ratings on appeal. As none of these decisions represent the maximum rating available for any of the service-connected disabilities on appeal, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. For the period prior to February 3, 2017 the Veteran's left hip disability has been manifested by moderately severe residual weakness, pain or limitation of motion following a total hip replacement. 2. For the period beginning February 3, 2017 the Veteran's left hip disability has been manifested by markedly severe residual weakness, pain or limitation of motion following a total hip replacement; at no point is it shown that such disability was manifested with painful motion or weakness such as to require the use of crutches. 3. For the period prior to February 3, 2017 the Veteran's cervical spine disorder has been manifested by forward flexion no more than 30 degrees and no less than 15 degrees with no evidence of ankylosis, muscle spasms, or guarding. 4. For the period beginning February 3, 2017 the Veteran's cervical spine disorder has been manifested by full forward flexion, total combined range of motion of no more than 195 degrees with no evidence of ankylosis, muscle spasms, or guarding. 5. During the entire period on appeal the Veteran's right (major) upper extremity radiculopathy has been manifested with complaints of pain, numbness, and weakness, analogous to no more than moderate incomplete paralysis. 6. During the entire period on appeal the Veteran's left (minor) upper extremity radiculopathy has been manifested with complaints of pain, numbness, and weakness, analogous to no more than moderate incomplete paralysis. 7. The Veteran's service-connected disabilities, precluded substantially gainful employment from June 1, 2012. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for the left hip disability prior to February 3, 2017 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5054 (2017). 2. The criteria for a rating of 70 percent, but no higher, for a left hip disability from February 3, 2017 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.71a, DC 5054 (2017). 3. The criteria for a disability rating in excess of 20 percent for cervical spine disorder prior to February 3, 2017 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.71a, DC 5242 (2017). 4. The criteria for a disability rating in excess of 10 percent for cervical spine disorder from February 3, 2017 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.71a, DC 5242 (2017). 5. The criteria for a rating of 40 percent, but no higher, for right (major) upper extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, DC 8512 (2017). 6. The criteria for a rating of 40 percent, but no higher, for left (minor) upper extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, DC 8512 (2017). 7. The criteria for an award of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Higher Evaluations and Rating Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A. Left Hip Disability The Veteran's hip is currently rated under DC 5054. The Veteran underwent a total left hip replacement prior to leaving service. Following service the Veteran was assigned a 30 percent rating under DC 5054 which was then increased to 50 Percent, effective February 23, 2009. Following prosthetic replacement of a hip, DC 5054 provides for a 100 percent rating for one year following implantation; a minimum 30 percent rating thereafter; a 50 percent rating for moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent for markedly severe residual weakness, pain, or limitation of motion following implantation; and a 90 percent rating for painful motion or weakness such as to require the use of crutches following implantation. Id. The Board notes that the Rating Schedule has not provided definitions for words such as "moderately severe," or "markedly severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In May 2009 the Veteran underwent a VA examination for his service-connected left hip disability. The Veteran reported chronic left hip pain which was characterized as preventing the Veteran from performing prolonged walking or standing, and an inability to run. Using stairs was noted to cause increased hip discomfort and the Veteran described sharp pain in the left hip when moving the left leg outward. No history of locking or dislocation was noted. No use of crutches was noted. Objective physical examination indicated a slightly antalgic gait with "very mild left leg limp." In January 2011 the Veteran underwent a VA examination for his service-connected left hip disability. The Veteran endorsed continued pain exacerbated by standing too long and rated the pain as an eight on a scale of ten. Stiffness and feelings of instability were described by the Veteran but there was no evidence of locking or swelling. Climbing stairs in both directions causes further pain and the Veteran's gait was described as abnormal. Use of a cane was endorsed. Objective physical examination revealed range of motion in the left hip was to 100 degrees flexion, external rotation to 15 degrees, and internal rotation to 10 degrees and extension to 25 degrees all with pain at the end measurements. The examiner further noted that there was no objective evidence of instability. The Veteran's November 2011 notice of disagreement (NOD) contained a statement regarding his left hip disability. The Veteran contended that an accurate appraisal of his left hip disability would include a finding that his hip was "prone to locking and results in loss of control." The Veteran disputed the characterization of his pain as "intermittent," providing that it was continuous. In October 2013 the Veteran underwent a VA examination for his service-connected left hip disability. The Veteran provided that his hip "locks up" if he quickly turns to the left. These instances also reportedly included pinch feelings and momentary loss of feeling. Objective physical examination results provided that the Veteran had flexion limited to 95 degrees with no objective evidence of painful motion and extension greater than five degrees with any objective evidence of painful motion. There was no further loss in range of motion after repetitive testing. Functional loss of the left hip was found and described as causing less movement than normal. The functional impact of the left hip disability was described as preventing him from being in a job "where he has to make sudden, quick turns to the left." Regular use of a cane was noted and the examiner opined that the Veteran used the cane "ineffectively, not putting any weight on the cane." The examiner further disputed the Veteran's claim of instability by opining that the Veteran's gait was normal. July 2014 disability records from the Social Security Administration (SSA) identify the Veteran's left hip disability as a contributing issue to the Veteran's disability determination. The SSA disability records describe the Veteran's left hip pain as "constant." In February 2017 the Veteran underwent a VA examination for his service-connected left hip disability. The Veteran provided that the pain has worsened over the years and manifested, at the time of the examination, with constant throbbing pain that could "become sharp and cause the limb to give way." The pain was also described as becoming worse upon sitting, standing, or walking for more than 30 minutes, also with external rotation. Objective physical examination results indicated that the left hip had abnormal range of motion, limited by pain on flexion to 110 degrees, extension to 15 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 25 degrees, and internal rotation to 40 degrees. Evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation was present, the location of the tenderness was anterior. Regular use of his a cane was endorsed. An x-ray was conducted with the examination with findings that indicated the left hip arthroplasty was grossly stable compared to the August 2014 imaging results. Regarding the functional impact of the Veteran's left hip disability the examiner opined that the disability rendered the Veteran "unfit for occupations that require standing or walking for longer than 30 minutes" or "sitting for longer than 30 minutes without the option to reposition." In April 2017 the Veteran testified before the undersigned VLJ. Regarding the status of his left hip disability the Veteran testified that he is unable to go upstairs and experiences his hip going out and falls due to turning quickly. Specifically the Veteran described a recent incident at Walmart where he was walking and turned to look for his wife, which caused him to lose feeling in hip and fall. The Veteran also testified that he continued to take VA prescribed narcotic pain killers, hydrocodone, for the pain associated with his hip. The Board finds that prior to February 3, 2017 the Veteran is not entitled to a rating in excess of 50 percent. The Board also finds that from the period beginning February 3, 2017 the Veteran is entitled to a rating of 70 percent, but no higher for his left hip disability. After thorough review of the record, the Board finds that the Veteran's left hip disability, has manifested with moderately severe pain for the period prior to February 3, 2017 and markedly severe pain for the period thereafter. In the VA examinations of record prior to February 3, 2017, the Veteran described pain manifesting at a moderately severe level. Specifically, while the Veteran characterized his pain at a level of eight out of ten the impact of that pain was limited to manifesting on walking, going up and down stairs, and some limitations on the range of motions associated with the hip joint. Regarding manifestations of weakness, the Veteran, prior to February 3, 2017, claimed that he experienced issues with instability. However, the objective physical examination results disputed the claims of instability, finding no such evidence. The VA examination conducted in February 2017 provided the basis for an increase to 70 percent disabling for the Veteran's service-connected left hip disability. In this examination the Veteran stated that his pain had become worse and described it has a constant throbbing with instances of sharp pain which caused the hip to give way. The Veteran also presented the first evidence of pain limiting his ability to sit, stand, or walk for more than 30 minutes, demonstrating an increase in the functional impact of his left hip disability. Range of motion measurements continued to demonstrate some limitation due to pain and the first evidence of pain on weight bearing and anterior localized tenderness was found. The Board also notes that these new and increased pain manifestations came despite the continued use of VA provided narcotics for pain management. The VA examination results were further supported by the Veteran's credible April 2017 testimony which provided that the Veteran can no longer go upstairs and described a fall from turning to quickly both attributed to the pain and weakness from his left hip disability. At no time has the evidence of record indicated that the Veteran's left hip disability, following the implantation of prosthesis, caused painful motion or weakness such as to require the use of crutches. The Veteran has endorsed regular use of a cane but has never, during the course of the appeal, required the use of crutches. Therefore, the Board finds that the Veteran is not entitled to an increased rating for his service-connected left hip disability prior to February 3, 2017 but is entitled to an increase to 70 percent, but no higher, for the period thereafter. B. Cervical Spine Disorder Historically, the Veteran's cervical spine disorder has been evaluated under 38 C.F.R. § 4.71a, DC 5242. A 20 percent rating is effective prior to February 3, 2017, and 10 percent thereafter. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, DCs 5235-5242. Intervertebral disc syndrome (IVDS) will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.2. 38 C.F.R. § 4.71a, DC 5243. Under DC 5242, a 20 percent disability evaluation is warranted for disability of the cervical spine resulting in forward flexion 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. A 30 percent disability evaluation is contemplated for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation applies if there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. The Formula for Rating IVDS on Incapacitating Episodes considers the frequency and total duration of such episodes. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (1). There are several notes set out after the diagnostic criteria. Associated objective neurologic abnormalities are to be rated separately under an appropriate DC and unfavorable ankylosis is defined for VA compensation purposes. Unfavorable ankylosis is a condition in which the entire cervical spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243. The Veteran underwent a May 2009 VA examination for his cervical spine. The Veteran's primary sharp pain on extension of his neck and difficulty turning his head to the side and looking over his shoulder. There was no history of flaring pain for more than 24 hours. The Veteran did describe sharp pain flares "depending on the neck position which resolves by changing position." Objective physical examination results provided that the Veteran's cervical spine had forward flexion to 20 degrees, which was the "most comfortable position," although flexion was measured up to 40 degrees. Extension was limited to 10 degrees, left and right lateral bending was limited to 20 degrees, right cervical rotation was limited to 40 degrees, and left cervical rotation was limited to 35 degrees. All limitations to range of motion were associated with pain. There was marked tenderness of the midline at the C7 level and lower cervical muscle tightness but no definite spasms. Repetitive testing revealed an additional loss of 10 degrees in range of motion on flexion and extension. The pain with use after repetitive testing was described by the examiner as a "major functional impact." In January 2011 the Veteran underwent a VA examination for his cervical spine. The Veteran reported continued pain but reported no associated flares. He further indicated that he did not have any incapacitating episodes associated with his neck pain. Objective physical examination results provided that the Veteran had range of motion measurements to include forward flexion of the cervical spine to 45 degrees extension to 10 degrees, left and right lateral flexion both to 30 degrees on the right side and 40 degrees on the left side, right rotation to 30 degrees, and left rotation to 50 degrees. All range of motion measurements reflects limitations due to pain. Repetitive testing did not reveal any further loss of range of motion due to painful motion, weakness, impaired endurance, incoordination or instability following repetitive testing.. March 2013 VA treatment records indicate that the Veteran did not report any musculoskeletal complaints. VA medical treatment records indicate that the Veteran reported neck pain in September 2013. In October 2013 the Veteran underwent a VA examination for his cervical spine. The Veteran did not report any flare-ups associated with his cervical spine disorder. Objective physical examination results provided that the Veteran had forward flexion to 45 degrees with no objective evidence of painful motion. The additional range of motion results indicated that that extension was limited to 35 degrees, right lateral flexion was limited to 30 degrees, left lateral extension was limited to 20 degrees, right lateral rotation was limited to 50 degrees, and left lateral rotation was limited to 50 degrees. Repetitive testing did not reveal any further loss in range of motion measurements. The examiner indicated that the Veteran had functional loss or impairment that manifested in "less movement than normal." There was no evidence of muscle spasms or guarding. There was no evidence of ankylosis or IVDS. In February 2017 the Veteran underwent a VA examination for his cervical spine. The Veteran did not report any flare-ups of his cervical spine. However, the Veteran did report functional loss or functional impairment manifesting with limited extension, rotation, and lateral flexion. Objective physical examination results provided that the Veteran had full range of motion on forward flexion. Other range of motion measurements indicated extension limited to 30 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 40 degrees, and left lateral flexion limited to 40 degrees all limited by pain. The examiner indicated that the pain the Veteran experienced associated with range of motion prevented the Veteran from looking to the side or behind him. There was objective evidence of localized tenderness or pain on palpation of the bilateral cervical musculature. There was no additional loss in range of motion following repetitive use. There was no evidence of muscle spasms or guarding, no evidence of ankylosis, and no evidence of IVDS. In April 2017 the Veteran testified before the undersigned VLJ regarding the nature and extent of his service-connected cervical spine disorder. The Veteran's spouse also testified and provided that the Veteran in unable to turn his head without experiencing pain, or look behind him. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent disabling prior to February 3, 2017, and in excess of 10 percent thereafter. Prior to February 3, 2017 the Veteran's cervical spine disorder manifested with, at most, forward flexion limited to 20 degrees by pain following repetitive use. The predominant range of motion limitations appear to manifest in the lateral aspects of range of motion, in addition to extension. There was no evidence of muscle spasms or guarding. There is no evidence of unfavorable ankylosis of the cervical spine or favorable ankylosis of the entire spine. There is also no evidence of IVDS and associated incapacitating episodes. For the period beginning February 3, 2017 the evidence of record indicates that the Veteran had full range of motion on forward flexion. The lateral and extension aspects of range of motion were limited by pain and were characterized as preventing the Veteran from effectively looking to either side or behind him. However, the combined range of motion tests was 195 degrees for this period, as evidenced by the February 2017 VA examination. There is no evidence that the combined range of motion of the cervical spine was limited to 170 degrees or less. Consistent with the period prior to February 3, 2017 there is no evidence of muscle spasms or guarding. There is no evidence of unfavorable ankylosis of the cervical spine or favorable ankylosis of the entire spine. There is also no evidence of IVDS and associated incapacitating episodes. Therefore the Board finds that an increase is not warranted for either period of the current staged rating for the Veteran's service-connected cervical spine disorder. C. Left and Right Upper Extremity Radiculopathy The Veteran's service-connected bilateral upper extremity radiculopathy is currently assigned a staged rating, evaluated at 40 percent prior to July 20, 2015 and 20 percent thereafter for the right (major) extremity, and 30 percent prior to July 20, 2015 and 20 percent thereafter for the left (minor) extremity. The Veteran's bilateral upper extremity radiculopathy is evaluated under 38 C.F.R. § 4.124a, DC 8511 paralysis of the lower radicular group. Under that DC, complete paralysis of the nerve (all intrinsic muscles of hand, and some or all of flexors of writs and finders, paralyzed (substantial loss of use of the hand)) is rated as 70 percent disabling for the major arm and 60 percent for the minor arm. Disability ratings of 20 percent, 40 percent, and 50 percent are assignable for incomplete paralysis which is mild, moderate, or severe in degree, for the major arm. 38 C.F.R. § 4.124a, DC 8512. Disability ratings of 20 percent, 30 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate, or severe in degree, for the minor arm. Id. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding Code 8511. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent a May 2009 VA examination which assessed the extent of his service-connected bilateral upper extremity radiculopathy. The Veteran provided that he experienced numbness in his fingers that would manifest while his arms were raised on his steering wheel and decreased grip strength. The Veteran further provided that laying on his back for sleep resulted in his arms going numb. Sensory examination of the upper extremities revealed a definite decrease two point discrimination in the small fingers of both hands. A two point discrimination in the thumb, index, long, and radial portion of the ring fingers was measured at six millimeters. The two point discrimination in the small fingers of both hands was measured at 10 millimeters. The diminished grip power in both hands was estimated at 30 percent. In a July 2011 VA examination the Veteran stated that he had gradual numbness and weakness of his grip and in his deltoid. However, there was no radiating pain. The impact of the numbness and weakness in the Veteran's hands was credited with contributing to an inability to drive and occasionally causing him to drop a cup. Objective strength testing of the upper extremities was rated a five out of five except for in the bilateral wrists and grips. Decreased sensation was indicated over the Veteran's hands and arms bilaterally in a "glove pattern," with more decreased sensation in the thumbs and fifth digits. In October 2013 the Veteran underwent a VA peripheral nerve examination. The Veteran's peripheral nerve symptoms were described as intermittent mild pain bilaterally in the upper extremities and mild numbness bilaterally in the upper extremities. Muscle strength was normal in the upper extremities. Upper sensory examination results were normal as well. Lower radicular incomplete paralysis at a mild severity was the ultimate characterization in both upper extremities. The functional impact of the Veteran's radiculopathy was described as sharp pain and numbness in the bilateral little fingers caused only by lifting his head in a background extension or turning his head sideways excessively. July 2014 VA orthopedic treatment records indicated the Veteran's left hand and arm went numb when elevating in abduction. In July 2015 the Veteran underwent a VA peripheral nerve examination. The veteran reported a worsening of symptoms associated with his bilateral upper extremity radiculopathy. The Veteran described his symptoms as constant numb sensation in all of his fingers. The Veteran also reported that if he moved his neck or lifted his arms above his head then he would lose feeling in his arms, bilaterally, with the left side manifesting worse than the right side. Painful sensation in the arms, caused by movement, was also endorsed by the Veteran. The painful sensations were described as feeling like an "ice pick" shooting up his arms. Upon examination the Veteran's symptoms were described as manifesting with moderate bilateral intermittent pain in the upper extremities, mild bilateral paresthesias and/or dysesthesias in the upper extremities, and moderate bilateral numbness in the upper extremities. Muscle strength and reflex examination rendered normal results. Sensory examination was decreased in the bilateral inner and outer forearms and bilateral hands and fingers. The overall assessment rendered by the VA examiner was that the Veteran had bilateral upper extremity moderately incomplete paralysis of the lower radicular group. In February 2017 the Veteran underwent a VA peripheral nerve examination. The Veteran described his bilateral upper extremity radiculopathy symptoms as preventing him from holding his 35 pound granddaughter for more than 15 seconds with the left upper limb and one minute with the right upper limb. Muscle strength and reflex examination results were normal. Sensory examination results indicated that bilateral hand and finger sensation were decreased. The Veteran's radiculopathy symptoms were described as manifesting with bilateral upper extremity moderate intermittent pain, bilateral upper extremity moderate paresthesias and/or dysesthesias, and bilateral upper extremity moderate numbness. The VA examiner assessed the bilateral upper extremity radiculopathy as mild on the right side and moderate on the left. In April 2017 the Veteran testified before the undersigned VLJ. Regarding the severity of his bilateral upper extremity radiculopathy. The Veteran provided that the numbness in his hands had gotten worse. Specifically the Veteran indicated that his left arm would go numb when raised and would "go to sleep" when picking up his grandchildren with his left arm. i. Right Upper Extremity Radiculopathy Analysis The Veteran's right upper extremity radiculopathy currently has a staged rating of 40 percent prior to July 20, 2015 and 20 percent thereafter. However, the Board finds that the Veteran is entitled to a rating of 40 percent, but no higher, for the entire period on appeal. Prior to July 20, 2015 the Veteran's radiculopathy symptoms manifested with symptoms of numbness in his little fingers, thumbs, and arm, periods of sharp pain caused by lifting and turning his head, and some reported weakness in grip demonstrated by multiple VA examinations and lay statements by the Veteran. With this evidence the Veteran's radiculopathy was rated at a moderate level, despite previous VA examiner characterizations of the symptoms as "mild." There was no objective evidence of overall diminished strength, muscle atrophy, or diminished reflexes. The July 2015 examination served as the basis of the RO's staged rating to 20 percent disabling for right upper extremity radiculopathy. However, the Board finds that the evidence contained in this examination and thereafter demonstrates that the Veteran's symptomatology continued to demonstrate right upper extremity radiculopathy at a moderate level. Specifically the July 2015 examination includes statements from the Veteran that his numbness and pain in his arm and hand had become worse. Upon physical examination the Veteran's pain and numbness was described as intermittent and moderate. Sensory examination confirmed decreased sensation in the forearm and hand and the VA examiner rendered an opinion that the Veteran's right upper extremity radiculopathy manifested as moderate. Further examination in February 2017 resulted in the VA examiner characterizing the Veteran's symptoms as mild. However, the examination results include statements from the Veteran that his radiculopathy symptoms prevent him from holding his 35 pound grandchild for more than a minute with his right arm, objective physical examination results indicating decreased hand sensation, and objective characterization of numbness, pain, and paresthesias and/or dysesthesias all characterized as moderate. At no time during the appeal period has the Veteran's right upper extremity radiculopathy been manifested by findings that more closely approximate severe incomplete paralysis. The evidence of record does not include significant deterioration in strength, muscle atrophy, or reflex impairment. Therefore the Board finds that the Veteran's right upper extremity radiculopathy more closely approximated moderate incomplete paralysis from the entire period on appeal. ii. Left Upper Extremity Radiculopathy Analysis The Veteran's right upper extremity radiculopathy currently has a staged rating of 30 percent prior to July 20, 2015 and 20 percent thereafter. However, the Board finds that the Veteran is entitled to a rating of 30 percent, but no higher, for the entire period on appeal. Prior to July 20, 2015 the Veteran's radiculopathy symptoms manifested with symptoms of numbness in his little fingers, thumbs, and arm, periods of sharp pain caused by lifting and turning his head, and some reported weakness in grip demonstrated by multiple VA examinations and lay statements by the Veteran. With this evidence the Veteran's radiculopathy was rated at a moderate level, despite previous VA examiner characterizations of the symptoms as "mild." There was no objective evidence of overall diminished strength, muscle atrophy, or diminished reflexes in the Veteran have left upper extremity. The July 2015 examination served as the basis of the RO's staged rating to 20 percent disabling for left upper extremity radiculopathy. However, the Board finds that the evidence contained in this examination and thereafter demonstrates that the Veteran's symptomatology continued to demonstrate left upper extremity radiculopathy at a moderate level. Specifically the July 2015 examination includes statements from the Veteran that his numbness and pain in his arm and hand had become worse. The Veteran expressed that his symptoms were worse in his left upper extremity. The results of the physical examination provided that the Veteran's pain and numbness was manifested as intermittent and moderate. Sensory examination confirmed decreased sensation in the forearm and hand and the VA examiner rendered an opinion that the Veteran's left upper extremity radiculopathy manifested as moderate. Further examination in February 2017 resulted in the VA examiner continuing to characterize the Veteran's symptoms as moderate. The examination results include statements from the Veteran that his radiculopathy symptoms prevent him from holding his 35 pound grandchild for more than 15 seconds with his left arm, objective physical examination results indicating decreased hand sensation, and objective characterization of numbness, pain, and paresthesias and/or dysesthesias all characterized as moderate. At no time during the appeal period has the Veteran's left upper extremity radiculopathy been manifested by findings that more closely approximate severe incomplete paralysis. The Board recognizes that the Veteran's radiculopathy symptoms have been characterized as worse on the left side and that the Veteran has stated he is unable to hold his grandchild for more than 15 seconds with his left arm without it going to sleep. However, the evidence of record does not include significant deterioration in strength, muscle atrophy, and no reflex impairment. Therefore the Board finds that the Veteran's left upper extremity radiculopathy more closely approximated moderate incomplete paralysis from the entire period on appeal. II. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See M21-1, Part IV, Subpart ii, Chapter 2(F)(1)(c). In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). With consideration of the change in evaluations as a result of this Board decision, the Veteran is currently receiving compensation for total left hip replacement due to traumatic arthritis, currently evaluated at 50 percent disabling from February 23, 2009 and recently increased to 70 percent; posttraumatic stress disorder (PTSD), currently evaluated at 50 percent from August 6, 2014; right upper extremity radiculopathy, currently evaluated at 40 percent from February 23, 2009; left upper extremity radiculopathy, currently evaluated at 30 percent from February 23, 2009; cervical spine disorder, currently evaluated at 10 percent from February 3, 2017; and a left hip scar, currently evaluated as noncompensable from July 22, 2014. The Veteran currently meets the requirements to be considered for TDIU on a schedular basis from February 23, 2009. The Veteran's competent lay statements, including testimony before the undersigned, indicate that the Veteran's work history has involved a mix of physical and sedentary work, to include ranch work, employment in corrections, commercial truck driving, and most recently as an investigator for the State of Colorado regarding abuses of the elderly and children. The Veteran has stated that he was forced to retire from this position in June 2012 and has not been able to work as of July 1, 2012 according to a disability determination by SSA. The Veteran's October 2013 VA examination contained an assessment of the impact of his service-connected disabilities on his ability to work. The VA examiner provided that the Veteran was unable to do work which required him to stand and make "sudden quick turns." The Veteran was also described as incapable of climbing ladders or significant stairs, driving was limited by the Veteran's inability to rotate his head routinely, and he was unable to perform work that required him to look upward or lift/carry heavy loads. The Veteran's fine motor skills were described as intact despite occasional finger numbness. Ultimately the VA examiner found that the Veteran was suitable for sedentary work if provided a swivel chair. The Veteran's capacity for employment was further assessed in a July 2014 VA mental health examination. The opinion provided by the examiner indicated that the Veteran's insomnia disorder interfered with his employment functioning. In August 2014 SSA issued a determination that the Veteran was disabled and unable to work based on his physical and mental disabilities. A May 2015 VA examination for P T S D confirmed that the Veteran had not been able to obtain any employment since the last VA examination. VA examinations conducted in February 2017 the impact of his cervical spine disorder and associated radiculopathies were characterized as preventing him from maintaining employment that required frequent movement of the neck or lifting anything over 35 pounds. The Veteran's left hip disability was characterized as preventing him from obtaining employment that required sitting (without the opportunity to reposition), standing, or walking for more than 30 minutes at a time. In his April 2017 testimony before the undersigned the Veteran provided that in his last job as an investigator for the State of Colorado he was told that he no longer met the qualifications for the position and that he would need to return to school to obtain a social services degree. The Veteran further indicated that he was being brought into weekly meetings where he was being told that he did not socialize well with the other employees. However, there were also physical aspects to the investigative job which limited his ability, such as walking more than a mile and changing elevations on stairs. Following his departure from his job as an investigator the Veteran attempted to work for himself by becoming a commercial truck driver and a farmer. His physical disabilities prevented him from farming effectively by limiting his capabilities and his pain medications for the same disabilities prevented him from passing the Department of Transportation requirements or maintaining a commercial driver's license. The Veteran also testified that in 1981, prior to his enlistment in the Navy, he taught for two years at a university. Based upon the evidence, the Veteran's service-connected disabilities render him unemployable. Since his retirement, predominantly due to his service-connected disabilities, the evidence of record reveals that he would not be able to obtain and maintain substantial gainful employment. The impact of the Veteran's physical disabilities clearly precludes him from returning to any occupation requiring any real physical component. As for sedentary work, the Board finds that both the Veteran's physical and mental disabilities contribute to an inability to obtain meaningful employment in this field. The Veteran's physical manifestations of his disabilities have progressed to impact his ability to sit for prolonged periods of time and cause weakened grip and prevent effective typing skills. The Veteran's psychological disabilities appear to be a contributing cause to his departure from his previous job due to an inability to effectively engage with his co-workers. Furthermore, the effects of his associated medications have impacted his ability to pass necessary medical testing to obtain employment. While the Board notes that the Veteran previously held a job as a university professor the Board finds it highly unlikely that he would be able to return to such a field. This occupation was prior to military service and the current psychological disabilities in particular would likely render him ineffective in attempting to return to that occupation. As such, entitlement to award of a TDIU is granted. ORDER For the period prior to February 3, 2017, entitlement to a rating in excess of 50 percent for left hip disability is denied. For the period beginning February 3, 2017, entitlement to a rating of 70 percent, but no higher, for left hip disability is granted, subject to the laws and regulations governing the award of monetary benefits. For the period prior to February 3, 2017, entitlement to a rating in excess of 20 percent for cervical spine disorder is denied. For the period beginning February 3, 2017, entitlement to a rating in excess of 10 percent for cervical spine disorder is denied. Entitlement to a rating of 40 percent, but no higher, for right upper extremity radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating of 30 percent, but no higher, for left upper extremity radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs