Citation Nr: 18152243 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-39 811 DATE: November 21, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is denied. Entitlement to an initial disability rating in excess of 10 percent for a low back disability is denied. FINDINGS OF FACT 1. The Veteran’s residuals of a TBI were manifested by evidence of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. 2. The Veteran’s forward flexion of the thoracolumbar spine was at worst 80 degrees, his combined range of motion was at worst 210 degrees, and he does not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for residuals of a TBI have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1 4.14, 4.21, 4.124a, Diagnostic Code 8045 (2018). 2. The criteria for an initial rating in excess of 10 percent for the Veteran’s low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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 (2018). 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 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when 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). Given the nature of the present claims for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for both disabilities in August 2013. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Residuals of a TBI The Veteran’s TBI residuals are rated at 10 percent under Diagnostic Code 8045. TBI. 38 C.F.R. § 4.124a. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Id. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, VA is to evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in Diagnostic Code 8045 here that are reported on an examination, VA is to evaluate under the most appropriate Diagnostic Code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Id. The first facet is memory, attention, concentration, and executive functions and is evaluated as follows: 0 for no complaints of impairment; 1 for a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; 2 for objective evidence on testing of mild impairment resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment resulting in moderate functional impairment; and total for objective evidence on testing of severe impairment resulting in severe functional impairment. Id. The second facet is judgment and is evaluated as follows: 0 for normal judgment; 1 for mildly impaired judgment (for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision); 2 for moderately impaired judgment (for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, but having little difficulty with simple decisions); 3 for moderately severely impaired judgment (for even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision); and total for severely impaired judgment (for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, such as being unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities). Id. The third facet is social interaction and is evaluated as follows: 0 for routinely appropriate social interaction; 1 for occasionally inappropriate social interaction; 2 for frequently inappropriate social interaction; and 3 for social interaction that is inappropriate most or all of the time. Id. The fourth facet is orientation and is evaluated as follows: 0 if always oriented to person, time, place, and situation; 1 if occasionally disoriented to one of those four aspects; 2 if occasionally disoriented to two of those four aspects or often disoriented to one of them; 3 if often disoriented to two or more of them; and total if consistently disoriented to two or more of them. Id. The fifth facet is motor activity (with intact motor and sensory system) and is evaluated as follows: 0 for normal motor activity; 1 for motor activity that is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities despite normal motor function); 2 for motor activity that is mildly decreased or with moderate slowing due to apraxia; 3 for motor activity that is moderately decreased due to apraxia; and total for motor activity that is severely decreased due to apraxia. Id. The sixth facet is visual spatial orientation and is evaluated as follows: 0 for normal visual spatial orientation; 1 if mildly impaired (occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions, but is able to use assistive devices such as GPS); 2 if moderately impaired (usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance, and has difficulty using assistive devices such as GPS); 3 if moderately severely impaired (gets lost even in familiar surroundings and is unable to use assistive devices such as GPS); and total if severely impaired (may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment). Id. The seventh facet is subjective symptoms and is evaluated as follows: 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as mild or occasionally headaches or mild anxiety); 1 for three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light); and 2 for three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as marked fatigability, blurred or double vision, or headaches requiring rest periods during most days). Id. The eighth facet is neurobehavioral effects and is evaluated as follows: 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction (such as irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability); 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction or social interaction but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both, but do not preclude them; and 3 for one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Id. The ninth facet is communication and is evaluated as follows: 0 for ability to communicate by spoken and written language and to comprehend spoken and written language; 1 for occasional impairment of comprehension or expression of spoken or written language, but with the ability to communicate complex ideas; 2 for inability to communicate by or comprehend spoken and/or written language more than occasionally but less than half of the time, but generally with the ability to communicate complex ideas; 3 for inability to communicate by or comprehend spoken and/or written language at least half of the time but not all of the time, but with the ability to communicate basic needs and maybe with reliance on gestures or other alternative modes of communication; and total for complete inability to communicate by or comprehend spoken and/or written language, with the inability to communicate basic needs. Id. The tenth facet is consciousness and warrants a total rating if there is a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. As stated above, there is no lesser rating for impairment of consciousness. Id. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. Note (4): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Id. Note (5): A veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that veteran’s disability rating to determine whether the Veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. Id. As the Veteran’s service connection for TBI residuals is from August 2013, Note (5) does not apply to the Veteran’s case. His VA treatment records show consistent complaints of memory complaints since his service in Afghanistan. In October 2013, the Veteran’s memory symptoms were evaluated. He reported problems concentrating and following conversations. A VA physician conducted neuropsychological testing. The Veteran received a score of 88 overall. This score placed the Veteran in the low average of cognitive abilities. His individual scores were rated as follows: average on immediate memory and visuospatial/construction tasks; low average on language and delayed memory tasks; and mild impairment on attention. The Veteran received a VA TBI examination in October 2014. The examiner noted the Veteran had mild memory loss, such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions but without objective evidence on testing. The examiner summarized his memory symptoms as mild cognitive and short-term memory deficits which continue to the present. His judgement was normal, social interactions routinely appropriate, orientation proper, motor activity normal, and visual spatial orientation normal. His subjective symptoms did not interfere with his work or daily activities. The Veteran had no neurobehavioral effects, was able to community orally and in writing, and had normal consciousness. The examiner noted the Veteran did have residual headaches. Last, the examiner concluded the Veteran’s disability did not prevent him from working, and he suffered from mild, subjective cognitive deficits. In March 2015, the VA examiner provided an addendum opinion. The examiner confirmed with neuropsychology that an overall score of 88 did not represent objective impairment in functioning. The examiner stated that the Veteran’s “…score on objective cognitive testing represents functioning within the normal range.” Furthermore, the examiner noted any cognitive impairment secondary to the Veteran’s TBI would be expected to improve or remain stable, but not worsen. Therefore, because the Veteran’s 2013 functioning was within the normal range, no objective deficits would be expected to develop between the 2013 testing and the present. The Board finds the preponderance of the evidence is against the Veteran’s claim that a rating in excess of 10 percent is warranted for his TBI. The Board notes the VA examiner evaluated the 10 facets of consciousness as required by the Diagnostic Code and concluded the Veteran was within the normal range for all facets, except the executive functions category. The Veteran had mild memory loss, so the appropriate rating for the Veteran was 1, which is correlated with a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board acknowledges the Veteran’s contention that the October 2013 evaluation presented only an average of the Veteran’s score and did not break down his functioning by category. However, the neuropsychological testing did also show the individual test scores. He scored a 97 (average) for immediate memory, an 85 (low average) for language, a 68 for attention (mildly impaired), a 105 for visuospatial/constructional (average), and an 88 for delayed memory (low average). Furthermore, the March 2015 examiner considered the Veteran’s scores and concluded that they did not represent objective impairment in functioning. The Board assigns the March 2015 opinion more probative weight than the Veteran’s lay assertions. Furthermore, even in the October 2013 examination, the Veteran’s scores remained in the mildly impaired to average range. Therefore, the Board finds the Veteran’s disability is best captured by the 10 percent rating. Last, the Board acknowledges the Veteran has headaches due to his TBI. However, the Board notes a rating under Diagnostic Code 8100 for migraine headaches would not help the Veteran. For a rating higher than 10 percent under Diagnostic Code 8100, the Veteran’s headache disability would need to manifest as characteristic prostrating attacks occurring on average once a month, lasting over several months. See 38 C.F.R. § 4.124a. At his October 2014 VA headaches examination, the Veteran reported headaches two times per week but denied having prostrating headaches. Accordingly, while the Veteran has migraine headaches, they would not warrant a rating in excess of 10 percent. 2. Low Back Disability The Veteran’s lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under which a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a (2018). A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 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. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. 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. The criteria under the General Rating Formula 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, General Rating Formula for Diseases and Injuries of the Spine (2015). 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). 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 (2018). 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. 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. For purposes of assigning evaluations under Code 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2018). The Veteran does not have IVDS, as noted at his October 2014 VA examination. Therefore, Diagnostic Code 5243 is not applicable. Furthermore, the Veteran has not had incapacitating episodes as defined by the regulation. 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). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Veteran received a VA examination in October 2014. Veteran described having low back pain that ranged from a 3 to 6 out of 10 and increased with prolonged sitting or standing. His pain was worse in the morning, and his job exacerbated his pain because it required him to sit for long periods. He also experienced flare ups with prolonged standing and sitting. His range of motion was as follows: flexion to 80 degrees, with pain at 45 degrees extension to 25 degrees, with pain; right lateral flexion to 20 degrees, left lateral flexion to 25 degrees; right and left lateral rotation to more than 30 degrees. There was no change in his range of motion after repetitive testing, but he experienced functional loss in the form of less movement than normal and pain on movement. His muscle strength, reflexes, and sensory examination were normal. He did not have an abnormal gait, abnormal spinal contour, or muscle atrophy. He did not have ankylosis or IVDS. The Board finds a 10 percent rating is warranted. The Veteran’s forward flexion, was at worst 80 degrees. The Board acknowledges the Veteran experienced pain at 45 degrees, but his forward flexion was not limited to 45 degrees. Even after repetitive testing, the Veteran’s forward flexion was still measured as 80 degrees. Using the worst measurements (those obtained after repetitive testing), his combine range of motion was 210 degrees. Thus, a 20 percent rating is not warranted as the Veteran’s forward flexion was not less than 60 degrees and his combined range of motion was greater than 120 degrees. The Veteran’s range of motion is best contemplated by the 10 percent rating. The Board has considered the Veteran’s report of low back pain and functional loss. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nevertheless, neither the lay nor clinical evidence demonstrated painful motion that functionally limited the Veteran’s range of 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. In his Notice of Disagreement, the Veteran stated that because pain began at 45 degrees, he should be assigned a 20 percent rating under DeLuca. The DeLuca provisions do not require the assignment of a higher 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, 815 F.3d at 785-86. Even considering the Veteran’s statements describing his pain and functional impairment, and the fact that his forward flexion became painful at 45 degrees, the evidence does not show the Veteran’s decreased functional capacity meets the criteria for a 20 percent disability rating. Even with pain he was able to complete forward flexion to 80 degrees after repetitive testing. Therefore, the Veteran’s disability is adequately rated at 10 percent. Regarding neurological complications, at his VA examination he stated that he had radiating pain to his groin and the right lower extremity. However, his straight leg raise test was negative bilaterally, indicating the absence of radiculopathy symptoms. Additionally, the examiner specifically found that he did not have radiculopathy or signs or symptoms due to radiculopathy. The examiner then stated that no other neurological complications were present. (Continued on the next page)   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 evidence shows that he works full time. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel