Citation Nr: 1756781 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-02 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an in initial evaluation in excess of 10 percent prior to April 3, 2014 and in excess of 20 percent thereafter for a right shoulder disability. 3. Entitlement to an in initial evaluation in excess of 10 percent prior to April 3, 2014 and in excess of 30 percent thereafter for a cervical spine (neck) disability. 4. Entitlement to an evaluation in excess of 40 percent for a lumbar spine disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Army from October 1984 to October 2006. This matter comes before the Board of Veteran's Appeal (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The November 2010 rating decision granted service connection for right shoulder and cervical spine disabilities and assigned 10 percent ratings for them, effective February 11, 2010, continued the previously assigned 40 percent rating for a low back disability, and denied service connection for bilateral hearing loss. In a December 2014 rating decision, the VA RO in Reno, Nevada assigned a 30 percent disability rating for the Veteran's cervical spine disability and a 20 percent disability rating for his right shoulder disability, both effective April 3, 2014. As these ratings do not provide the maximum benefit available, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The jurisdiction of this case subsequently transferred to the RO in Waco, Texas. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss does not constitute a disability for VA purposes. 2. Prior to April 3, 2014, the Veteran's right shoulder disability was primarily manifested with functional limitation due to pain. 3. From April 3, 2014, the Veteran's right shoulder disability was manifested by pain and functional limitation of the shoulder better than forward flexion and abduction above shoulder height. 4. Prior to April 3, 2014, the Veteran's combined cervical range of motion was 265 degrees. 5. From April 3, 2014, the Veteran's combined cervical range of motion was 160 degrees and his forward flexion was 25 degrees. 6. At no point during the appeal period did the Veteran have ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. Prior to April 3, 2014, the criteria for an evaluation in excess of 10 percent for the Veteran's right shoulder disability were not met. 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201 (2017). 3. From April 3, 2014, the criteria for an evaluation in excess of 20 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Codes 2010-5201 (2017). 4. Prior to April 3, 2014, the criteria for an evaluation in excess of 10 percent for the Veteran's cervical spine disability were not met. 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243 (2017). 5. From April 3, 2014, the criteria for an evaluation in excess of 30 percent for the Veteran's cervical spine disability have not been met. 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243 (2017). 6. The criteria for an evaluation in excess of 40 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was satisfied by a letter sent in March 2010. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The evidence of record includes the Veteran's Service Treatment Records (STRs), his private medical records, his VA treatment records, and the reports of his VA examinations. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The Veteran received VA examinations in January 2009, May 2010, and November 2014 for his disabilities. The Board finds these examinations were adequate as the examiners reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and provided detailed findings. Accordingly, the Board's duty to assist has been fulfilled. II. Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131 (2012); see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2076). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Accordingly, the Board must determine if the Veteran has bilateral hearing loss for VA purposes. On the authorized audiological evaluation in May 2010, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 0 10 LEFT 10 5 10 5 10 The average pure tone threshold in the right ear was 6 decibels. The average pure tone threshold in the left ear was 8 decibels. Speech audiometry revealed speech recognition ability of 100 percent in both ears. The result of this examination provides probative evidence against the claim because it shows the Veteran's bilateral hearing loss does not meet the criteria to be considered a disability for VA purposes. See 38 C.F.R. § 3.385 (2017). While there was no objective medical evidence to support the Veteran's claim for bilateral hearing loss, as noted above, the Veteran presented competent and credible lay evidence to support his assertion that he was exposed to excessive noise in service and persistence of symptoms since that time. Nevertheless, the Veteran in this case is not competent to make a finding that his currently observed hearing loss meets the criteria set forth in 38 C.F.R. § 3.385 because they require administration and interpretation of audiometric testing. The record does not show that the Veteran has the skills, training, or experience needed to make such a finding. Though the Veteran's comments rating his hearing loss may be taken into account, the evidence from the VA audiological evaluation provides more probative weight. The Board emphasizes that Congress limits entitlement to service connection for cases where there is a current disability. 38 U.S.C.A. § 1110. For a veteran's hearing loss to be deemed a current disability a veteran must meet the criteria set forth in 38 C.F.R. § 3.385 (2017). Currently, the Veteran's bilateral hearing loss does not meet the required threshold. While the Board recognizes the Veteran's lay statements, absent competent evidence of a current disability, service connection must be denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Veteran's claim for bilateral hearing loss must be denied. III. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). 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 nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A. Right Shoulder Disability The Veteran's right shoulder disability is evaluated under Diagnostic Code 5201, for limitation of motion of the arm. The rating criteria for the shoulder are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 (2017). Diagnostic Codes 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2017). The medical evidence shows that the Veteran is right handed. Therefore, the criteria referencing the major extremity are for consideration here. Diagnostic Code 5201 does not contain criteria for a 10 percent rating. The Veteran's disability was rated using Diagnostic Codes 5010 and 5201. Under Diagnostic Code 5010, the rater is instructed to rate traumatic arthritis as degenerative arthritis, Diagnostic Code 5003. Under Diagnostic Code 5003, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2017). The Veteran's initial 10 percent rating was assigned for limited, painful motion. 38 C.F.R. §§ 4.59, 4.71a. Under Diagnostic Code 5201, limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating. Motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating. Motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). Under the rating criteria, forward flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees, are considered normal range of motion for the shoulder. Id. at Plate I. Prior to April 3, 2014 The evidence of record contains documentation of the Veteran's continued complaints of right shoulder pain. He complained of pain, radiating numbness, and limitation of motion. The Veteran received an MRI showing arthritis in his right shoulder. In May 2010, the Veteran received a VA examination. The VA examiner noted the Veteran had pain, stiffness, and weakness in his right shoulder. The Veteran did not have instability, incoordination, dislocation, subluxation, locking, or effusion. The VA examiner noted the Veteran's mobility problems were triggered by any movement. Additionally, during flare ups his range of motion was limited and his sleep was disturbed. The Veteran's range of motion for his right shoulder was as follows: flexion to 140 degrees, abduction to 152 degrees, internal rotation to 50 degrees, and external rotation to 90 degrees. The Veteran was examined after repetitive motion and there was pain but no additional loss in his range of motion. The Veteran did not have ankylosis. His right shoulder disability affected his job by decreasing his mobility and causing pain. The evidence also consisted of statements from the Veteran and his wife. The Veteran's wife submitted a statement in April 2010 explaining the Veteran's continued complaints of right shoulder pain, and noted the pain affected his sleep. Furthermore, the Veteran's right shoulder limited his ability to assist with chores. In February 2011, the Veteran stated his right shoulder condition should be considered severe and not mild. The Veteran stated he received shots in his shoulder for the pain. The Veteran described the pain as feeling like his nerves were being pinched and a knife was plunging into his shoulder. The Veteran experienced hand cramps and needed to use a special pillow. The Board acknowledges the evidence of record also contained a December 2012 opinion from the Veteran's private doctor that disagreed with the rating of the Veteran's right shoulder, cervical spine, and lumbar spine. The Veteran's private doctor indicated that the ratings for all 3 disabilities should be increased without additional description. Based on the foregoing, the Board finds the Veteran's disability is best captured at a 10 percent rating. The Board notes the medical evidence of record shows the Veteran is able to raise his right arm greater than shoulder level. The Board specifically notes the Veteran's flexion and abduction are to 140 and 152 degrees respectively, as documented in the May 2010 VA Examination. Additionally, the Veteran's external rotation is to 90 degrees. A 20 percent rating is warranted when range of motion is limited to the shoulder level. Further while the Board considers the Veteran's lay statements and the December 2012 private opinion, the Board finds that evidence is outweighed by the medical evidence of record documenting the Veteran's range of motion. The Board finds the evidence of record shows the Veteran has the ability to move his arm beyond shoulder level. The Board has considered the Veteran's report of shoulder pain and functional loss. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, neither the lay nor clinical evidence demonstrated painful motion that functionally limits shoulder motion beyond that contemplated by the current evaluation. See 38 C.F.R. § 4.59. The Board recognizes that the record establishes the presence of pain upon use. However, the current evaluation further contemplates the minimum compensable evaluation under 38 C.F.R. § 4.59 when limitation of motion is noncompensable but affected by painful motion. The DeLuca provisions do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). As the Veteran has documented arthritis, he is entitled to at least a 10 percent rating if his disability does not qualify for a compensable rating under the specific Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Therefore, as the Board finds the Veteran's disability picture is not captured by a compensable rating under Diagnostic Code 5201, the Board concludes the Veteran's rating prior to April 3, 2014 should remain at 10 percent. Further, a 20 percent rating under Diagnostic Code 5003 is not warranted because there is no probative medical or evidence that the Veteran has incapacitating exacerbations of his right shoulder disability. From April 3, 2014 The Veteran's next VA examination was in November 2014. The Veteran stated he experienced flare-ups daily, depending on his activity level. The VA examiner documented the Veteran's report that he experienced muscle spasms which radiated down the Veteran's right hand making his grip weak. The Veteran experienced functional loss when his pain flared up including weakness, and the Veteran would keep his arm immobile, massaging his shoulder for pain relief. The VA examiner documented the Veteran's range of motion as flexion to 165 degrees, abduction to 170 degrees, external rotation to 80 degrees, and internal rotation to 75 degrees. Weakness of the right shoulder was noted. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit his functional ability with repeated use. The VA examiner noted there was no pain with weight bearing or localized pain on palpitation. The Veteran did not experience functional loss after repetitive use. Further, though the Veteran was not examined during a flare up the Veteran's estimated range of motion during a flare up was flexion to 90 degrees, abduction to 85 degrees, external rotation to 40 degrees, and internal rotation to 40 degrees. The Veteran also noted he experienced weakness and pain in his right shoulder when performing tasks above chest height. The Veteran's right shoulder displayed normal strength and the examiner found that the Veteran did not have ankylosis. There was a history of mechanical symptoms and shoulder instability, dislocation, or labral pathology was suspected. The examiner found that there was no history of recurrent dislocation of the glenohumeral joint. The Veteran had no clavicle, scapula, or acromioclavicular (AC) joint impairment. There were no conditions of the humerus. The examiner noted that the Veteran would have problems with tasks above chest height due to weakness, and the Veteran reported a weak right hand grip. Based on this evidence the Board finds an increase in excess of 20 percent is not warranted. The Board concedes the Veteran's disability has worsened. However, the Veteran's normal range of motion is approximately shoulder height. The Veteran's abduction and flexion are still over 90 degrees when measured at the November 2014 VA examination. However, in considering whether an increase is warranted the Board must also look at the Veteran's range of motion during flare ups. The Board acknowledges the Veteran's reports of daily flare ups and his inability to raise his arm above shoulder height during flare ups; the Veteran's flexion and abduction numbers were both below 90 degrees. The Board must also consider the Veteran's functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45. The Board notes the VA examiner documented that the Veteran did experience functional loss due to pain, specifically weakness. Furthermore, the Board considers the Veteran's lay statements that he experiences weakness and pain in his shoulder when performing tasks above chest height. The Board concludes based on a combination of the Veteran's limited range of motion during flare ups, functional loss due to pain, and difficulty in reaching things at chest height, a 20 percent rating is warranted even though the Veteran's range of motion is not limited to shoulder level. However, as the Veteran can reach above his shoulder and his range of motion is not limited between his side and shoulder, a rating higher than 20 percent is not warranted. Even when considering the Veteran's flare ups and functional loss, the Board concludes the Veteran's right shoulder disability does not equate to more than the disability picture contemplated by the 20 percent rating already assigned. 38 C.F.R. § 4.71a. The Board has also considered other potentially applicable Diagnostic Codes. A rating under Diagnostic Code 5202 is clearly not indicated. Fibrous union, nonunion, or loss of the humeral head have not been reported in the evidence of record. Moreover, there is no evidence of record of marked or moderate deformity due to malunion. The evidence of record does not indicate that the Veteran has dislocated his shoulder on more than one occasion, and thus, there cannot be a rating for recurrent dislocation of the scapulohumeral joint. A rating under Diagnostic Code 5200 is clearly not applicable in the present case because there is no lay or medical evidence that the Veteran has ankylosis of the right shoulder joint, even with consideration of additional functional impairment due to pain and repetitive use. Diagnostic Code 5203 pertains to impairment of the clavicle or scapula, including dislocation, nonunion with or without loose movement, or malunion. In this case, there is no credible evidence of nonunion, dislocation or malunion of the clavicle or scapula. Therefore, Diagnostic Code 5203 is inapplicable. B. Cervical Spine Disability The Veteran's cervical spine disability is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a (2017). Under this Diagnostic Code a 10 percent rating is warranted with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasms, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. Id. A 20 percent rating is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasms or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted with forward flexion of the cervical spine at 15 degrees or less or there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted with unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. Last, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Under the rating criteria, forward flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees, and rotation to 80 degrees, are considered normal range of motion of the cervical spine. Id. at Plate V. Prior to April 3, 2014 Similar to the Veteran's shoulder disability, the evidence of record documents the Veteran's continued neck pain. In an April 2010 statement, the Veteran described that he had neck pain when he lifted his chin parallel to the ground or tilted his head back. The Veteran and his wife both submitted lay statements discussing the Veteran's limitations because of his neck. The Veteran has received shots in his neck to help with the pain. The Veteran received a VA examination in May 2010 for his neck pain. The VA examiner noted the Veteran had daily flare ups and that the Veteran's neck pain was constant. The Veteran's neck pain was sometimes relieved with medication, but the pain restricted the Veteran's activities. The Veteran did not have abnormal spinal contour, ankylosis, spasms, atrophy, guarding, tenderness, or weakness. The Veteran's range of motion was flexion to 50 degrees, extension to 35 degrees, left lateral flexion to 35 degrees, left lateral rotation to 55 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 60 degrees. The Veteran did not have objective pain during active range of motion or after repetition. Further, the Veteran did not experience additional loss in his range of motion after repetition. The Board finds the Veteran's disability picture is best captured by a 10 percent rating. His flexion was greater than 40 degrees. The Veteran's combined range of motion at 265 degrees is greater than 170 but less than 335 degrees, which falls within the 10 percent criteria. Therefore, the Veteran's range of motion does not meet the requisite threshold for a rating higher than 10 percent. In addition to considering the Veteran's range of motion measurements, the Board also considers the Veteran's lay statements and the evidence of functional loss due to pain. Here, the Board notes the Veteran's competent, credible lay statements that he experiences pain on motion in his neck. However, the VA examiner noted the Veteran does not experience any functional loss due to pain. The Veteran also does not have muscle spasms, atrophy, guarding, tenderness, or weakness. Accordingly, the Board concludes the preponderance of the evidence shows the Veteran's disability picture is best captured by the 10 percent rating even when taking into account functional loss. The provisions set forth in 38 C.F.R. §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). From April 3, 2014 The Veteran also received a VA examination in November 2014. The VA examiner noted the Veteran experienced daily flare ups that resulted in a loss of over 50 percent of movement. The Veteran's range of motion was noted as forward flexion to 25 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flection to 20 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 40 degrees. The Veteran did not experience additional loss in range of motion after repetition, but did experience functional loss, specifically less movement and pain on movement. The Veteran did not have localized tenderness, spasms, abnormal gait, abnormal spinal contour, or guarding. The Veteran did not have ankylosis, neurological abnormalities, or decreased sensation. The Veteran's disability did impact his occupation as extreme movements of the neck, bending over, and holding his neck up caused problems. The Board acknowledges the Veteran's disability has worsened. Specifically, the Board notes the Veteran's combined cervical range of motion is 160 degrees, and as his range of motion is less than 170 degrees, a 20 percent rating is warranted. However, despite this increase in disability severity, a higher rating is not warranted as the Veteran's forward flexion is still above 15 degrees, and he does not have ankylosis. The Board considers the Veteran's lay statements and the private opinion from his doctor that a higher rating is warranted, however, the medical evidence of record does not support a higher rating. The Board also considers functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45. The Board notes the November 2014 VA examiner noted the Veteran experienced less movement and pain on movement. However, the Board concludes the Veteran's functional loss does not equate to a disability picture higher than 20 percent. While the Veteran experiences some functional loss, the loss experienced is not sufficient to warrant an increase above 20 percent. 38 C.F.R. § 4.71a. C. Lumbar Spine Disability The Veteran's low back disability is also evaluated under Diagnostic Code 5242, degenerative arthritis of the spine. 38 C.F.R. § 4.71a (2017). Under this Diagnostic Code, a 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. The rating criteria for 50 percent and 100 percent were previously laid out above. Under the rating schedule, forward flexion to 90 degrees and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V. Based on the Veteran's disability the Board will also consider ratings under Diagnostic Code 5243, Intervertebral Disc Syndrome (IVDS). 38 C.F.R. § 4.71a (2017). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to Intervertebral Disc Syndrome that requires bed rest and prescribed by a physician and treatment by a physician. In this case, the Veteran has not been prescribed bedrest by a physician and therefore Diagnostic Code 5243 is not applicable. The criteria under the General Rating Formula for Diseases and Injuries of the Spine are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note 1. The Veteran received a VA examination in January 2009. The VA examiner noted the Veteran experienced severe flare ups daily that lasted for hours and were precipitated by bending, prolonged standing, and heavy lifting. The Veteran had 1 incapacitating episode that lasted 2 weeks where the Veteran had to avoid strenuous activities, but had no limitation in walking. The VA examiner noted the Veteran's incapacitating episode was not due to IVDS. The Veteran did not have abnormal spinal curvature, atrophy, tenderness, spasms, or weakness. The Veteran did have pain with motion and guarding but not severe enough to cause abnormal gait or spinal contour. The Veteran's forward flexion was to 25 degrees, The Veteran experienced pain after repetitive movement but no additional limitation. The Veteran's employment was limited by his back pain because he had decreased mobility and problems lifting. The Veteran's next VA examination was in May 2010. The VA examiner noted the Veteran experienced sharp, severe, daily back pain. The pain worsened after prolonged standing, lifting, bending, or sitting in a slouched position. The Veteran did not have an abnormal spinal contour, spasms, atrophy, guarding, tenderness, weakness, or ankylosis. The Veteran experienced pain with motion; however, the Veteran did not experience additional loss in range of motion after repetition. The Veteran's most recent VA examination was in November 2014. The Veteran continued to experience flare ups daily but he had no episodes that required bedrest since living in Texas as he limited the actions that would lead to that type of flare up. The Veteran's forward flexion was to 20 degrees. The examiner noted the Veteran's limited forward flexion caused a great deal of pain, which limited the Veteran's ability to engage in activities that required him to bend at the waist. The Veteran had pain with weight bearing activities, but no additional functional loss after repetitive movements. The Veteran experienced pain, weakness, and lack of endurance during a flare up. The Veteran did not have any neurological issues or ankylosis. The Board notes the evidence of record contains lay statements from the Veteran and his wife documenting the impact of his back disability. Like his neck disability, the Veteran stated he had to constantly take medication for the pain. The Veteran noted he used a dip rack and cane in the morning for his back. The Veteran's private doctor opined that the Veteran's condition continued to worsen over time and stated that the Veteran was precluded from taking stronger types of pain medication because of his job. The Board acknowledges the Veteran's condition has worsened. This worsening is particularly shown in the decrease in the Veteran's forward flexion. However, at no point during the appeal period has the Veteran suffered from ankylosis. Ankylosis is required for a rating above 40 percent. Therefore, while the Veteran's disability severity has increased the Veteran does not meet the schedular requirements for a rating higher than 40 percent. Moreover, while the Board concedes the Veteran has IVDS, at no point during the appeal period has the Veteran had an incapacitating episode that lasted at least 6 months, as is required for a rating above 40 percent. Last, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his back disability does not equate to more than the disability picture contemplated by the 40 percent rating already assigned. 38 C.F.R. § 4.71a. The Board notes the next higher rating requires ankylosis. The Veteran retains movement in his spine, therefore he does not have ankylosis. The Board concludes the 40 percent rating encompasses the functional loss experienced by the Veteran. Finally, a total disability rating based on individual unemployability (TDIU) is not warranted because the Veteran does not contend, and the evidence does not show, that his disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Board acknowledges the evidence of record contains evidence that the Veteran's employment is limited by his disabilities. Nevertheless, the Veteran has continued to work despite these limitations. Furthermore, the evidence shows the Veteran's employer has afforded him certain adjustments to assist with his disabilities, such as providing the Veteran with a standing desk. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent prior to April 3, 2014 and in excess of 20 percent thereafter for a right shoulder degenerative joint disability is denied. Entitlement to an evaluation in excess of 10 percent prior to April 3, 2014 and in excess of 30 percent thereafter for a degenerative disc cervical spine disability is denied. Entitlement to a rating in excess of 40 percent for a degenerative disc lumbar spine disability is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs