Citation Nr: 1807943 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-16 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial increased disability rating for a cervical disc disorder (cervicalgia), presently rated as 10 percent disabling prior to September 12, 2014, and as 20 percent disabling thereafter. 2. Entitlement to an initial increased disability rating for diffuse disc bulging of the lumbosacral spine (L2-L3 to L5-S1) with mild narrowing, presently rated as 10 percent disabling prior to September 12, 2014, and as 20 percent disabling thereafter. 3. Entitlement to an increased initial disability rating for left shoulder impingement syndrome, presently rated as 10 percent disabling prior to February 2, 2017, and as 20 percent disabling thereafter. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served honorably in the Army National Guard with periods of active service from October 1982 to March 1983, November 2001 to July 2002, February 2003 to February 2004, and July 2009 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2011 and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This matter previously came before the Board in December 2016, at which time the Board denied service connection for a bilateral eye condition and a psychiatric disability, and denied an increased disability rating for spondylotic changes at the right side of the sternum. The issues remaining on appeal were remanded for further development. Also remanded in December 2016 were the issues of service connection for a disability manifested by bilateral hand and arm cramps, service connection for tinea unguium with onychogryphosis, and service connection for abdominal hernia. In May 2017, after the development ordered by the Board was conducted, the RO issued a new rating decision granting service connection for inguinal hernia, tinea unguium with onychogryphosis, and a disability of the median nerve affecting the right and left upper extremities (claimed as bilateral arm and hand cramps). As those grants constitute a total grant of the issues on appeal, they no longer are before the Board and have not been included in this decision. Also in the May 2017 rating decision, the RO granted an increased disability rating of 20 percent for left shoulder impingement, effective February 2, 2017. Although that is a grant of the issue on appeal, it is only partial in nature. As such, that issue remains before the Board at this time. The Board has updated the issue, above, to reflect the partial increase. The Board observes that in November 2017, the Veteran submitted a claim for increased ratings for inguinal hernia, right and left median nerve disabilities, and left shoulder impingement syndrome. As the increased rating claim for a left shoulder disability has already been perfected as an appeal, that issue is before the Board at this time. On January 10, 2018, the RO issued a letter to the Veteran informing him that the hernia, and median nerve disabilities were being referred to the Board for further consideration; however, because those claims that were pending were for service connection and not for increased ratings, and because those claims have been granted, the issue of an increased rating for those disabilities constitutes a new appeal. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In April 2016, the Veteran testified before the Board at a hearing held at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. Prior to February 4, 2013, the Veteran's cervical spine disability resulted in a combined range of motion of 330 degrees. 2. From February 4, 2013, the Veteran's forward flexion of the cervical spine has resulted in range of motion greater than 15 degrees but not greater than 30 degrees; there has been no evidence of ankylosis of the cervical spine at any point on appeal. 3. Prior to September 12, 2014, the Veteran's lumbosacral spine disability resulted in a maximum of 85 degrees of forward flexion with a combined range of motion of 225 degrees. 4. From September 12, 2014, the Veteran's lumbosacral spine disability has resulted in between 35 and 60 degrees of forward flexion, with 135 to 205 degrees of combined range of motion. 5. Prior to September 12, 2014, the Veteran's left shoulder impingement syndrome did not limit motion of his arm to shoulder level or less. 6. From September 12, 2014, the Veteran's left shoulder impingement syndrome resulted in a positive Hawkins' Impingement Test, which is evidence of pain and weakness at 90 degrees, or shoulder level. 7. The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment for any period on appeal. CONCLUSIONS OF LAW 1. Prior to February 4, 2017, the criteria for a rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242, 5243 (2017). 2. From February 4, 2013, the criteria for a 20 percent rating, but not greater, for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5242, 5243. 3. Prior to September 12, 2014, the criteria for a rating in excess of 10 percent for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5237, 5242 (2017). 4. From September 12, 2104, the criteria for a rating in excess of 20 percent for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5237, 5242. 8. Prior to September 12, 2014, the criteria for a rating in excess of 10 percent for left shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5019, 5201 (2017). 5. From September 12, 2014, the criteria for a 20 percent rating, but not higher for left shoulder impingement syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5019, 5201. 6. The criteria for a grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in September 2010. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, service treatment records VA examination reports, various medical and internet articles provided by the Veteran, hearing testimony, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). II. Increased Disability Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issues on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2017). The Veteran seeks increased disability ratings for cervical disc disorder, diffuse disc bulging of the lumbosacral spine (L2-L3 to L5-S1) with mild narrowing, and left shoulder impingement. The Board will address each individually. A. Cervical Spine The Veteran's cervical disc disorder (cervicalgia, previously diagnosed as cervical spondylosis with associated early degenerative disc disease) is presently rated as 10 percent disabling prior to September 12, 2014, and as 20 percent disabling thereafter, under Diagnostic Code 5242, which addresses degenerative arthritis of the spine, and applies the General rating formula for disease and injuries of the spine. Under the applicable diagnostic criteria, a 10 percent rating is assigned for forward flexion of the cervical spine grater that 30 degrees, but not greater than 40 degrees; or combined range of motion of the cervical spine of 170 degrees but nor more than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more height. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2017). A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent disability rating is assigned for forward flexion of the cervical spine of 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. The Board notes that spinal disabilities may also be rated based on incapacitating episodes of intervertebral disc syndrome (IVDS); however, as is discussed below, such pathology is not of record. 38 C.F.R. § 4.71a, DC 5243 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). After careful review, the Board finds that a 20 percent rating should be assigned effective February 4, 2013, but that prior to that date a rating in excess of 10 percent should not be granted. In December 2010, the Veteran was afforded a VA examination in connection with his initial service connection claim. At that time, cervical spine flexion was 45 degrees, with a combined range of motion of 310 degrees. There was objective evidence of pain on motion, occurring daily, and described as severe in nature, although not causing any additional limitation of motion upon repetition. Spasm and tenderness were noted, though no abnormal spinal contour or curvatures were found, and no evidence of ankylosis was reported. The examiner specified that muscle spasm, localized tenderness or guarding did not result in abnormal spinal contour. Reflexes were normal. This examination shows a combined range of motion of 310 degrees, which is compensated by a 10 percent rating (indeed, forward flexion of the cervical spine alone, at 45 degrees, would not provide a compensable rating). There is no objective evidence that factors such as pain, weakness, fatigability, or incoordination cause such a loss of range of motion as to warrant a higher rating, nor is there any evidence of abnormal gait or abnormal spinal contour. As such, a 10 percent rating is the maximum that this examination allows. On February 4, 2013, the Veteran was afforded a new VA examination, at which time it was reported that the Veteran experienced flare-ups involving neck pain and sudden muscle spasms, worse at night and after repetitive movement at work. Despite the pain, the Veteran reported that he worked at his own pizzeria. Forward flexion was to 30 degrees with objective evidence of painful motion at 20 degrees. Combined range of motion was 220. Upon repetition, forward flexion was limited to 25 degrees. Range of motion was lost due to pain on movement. Guarding and/or muscle spasm were present but did not result in abnormal gait or contour of the spine. Strength testing was normal. Reflexes were normal. Although IVDS was noted, there were no incapacitating episodes in the prior month. The Veteran frequently used a neck brace, but no other pertinent physical findings were reported. Here, the Board will grant a 20 percent rating based on forward flexion between 15 and 30 degrees (with and without objective evidence of pain limiting motion), effective the date of the examination, February 4, 2013. Because the evidence, including the Veteran's own reports of fare-ups, does not support that forward flexion is limited to 15 degrees or less, and there is no evidence of ankylosis, a higher rating cannot be assigned. On September 12, 2014, the Veteran was again afforded a VA examination in connection with his claim. At that time, the Veteran's cervical spine disability resulted in limitation of range of motion to 30 degrees. Objective evidence of pain was noted at 5 degrees, however, the Veteran's forward flexion was not further limited based on repetitive use testing. Combined range of motion was 200 degrees. Functional loss included less movement than normal and pain on movement, as described in terms of loss of range of motion. Localized tenderness, guarding, and muscle spasm were noted, but neither resulted in abnormal gait or spinal contour. Muscle strength and reflexes were normal. No ankylosis was reported. The examiner reported that the Veteran's condition was moderate in severity. No evidence of weakness, fatigability, or incoordination was found at the time. Although pain could further limit functional ability during a flare up, the examiner declined to express to what degree that limitation might result in, as any such report would be speculative at best. The Veteran was not examined during a flare up, but in his own words described his neck disability as limiting overhead activities only. Here, the Board observes that the evidence does not support a finding that forward flexion of the spine was limited to 15 degrees or less, nor was there any evidence of ankylosis, as such, a rating in excess of 20 percent cannot be granted. An examination conducted in October 2015 found forward flexion to 40 degrees with a combined range of motion of 280 degrees. The Veteran's cervical spine was tender to palpation at the paravertebral muscle. No additional loss of range of motion was reported based on repetitive use. The examiner was unable to state whether pain, weakness, fatigability or incoordination significantly limited the ability to move with repeated use over a period of time because opining based on a possible future event would be speculative. For his part, the Veteran described the condition during a flare up as limiting his ability to life heavy objects only. Localized tenderness, guarding, and muscle spasm were noted, but did not result in abnormal gait or spinal contour. Muscle strength and reflexes were normal. No IVDS was found. No ankylosis was found. The examiner stated that the Veteran would be limited to occupational activities with restriction on repetitive neck twisting or extreme bending. He would be unable to engage in heavy lifting, carrying, pushing or pulling, as well as prolonged standing or ambulation activities. Here, again, the Board observes that there is no evidence, to include the Veteran's own statements, that forward flexion was limited to 15 degrees or less, nor was there any evidence of ankylosis, thus a rating in excess of 20 percent cannot be granted. A June 2016 VA examination report found forward flexion limited to 30 degrees with a combined range of motion of 220. Pain was noted on movement, but it did not result in additional loss of range of motion. The examination was not conducted during a flare up, although the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up. The examiner stated that pain, weakness, fatigability, or incoordination could limit functional ability during a flare-up, however, to what extent such limitations occurred could not be stated without resort to speculation, as it would involve opinion on a possible future event. For his part, the Veteran stated that flare-ups only interrupted his sleep pattern. He did not describe any additional physical limitations. Muscle spasm and tenderness were observed, but not resulting in abnormal gait or spinal contour. There was no evidence of guarding found. Muscle strength and reflexes were normal. There was no evidence of ankylosis. Although the examiner found evidence of IVDS, there were incapacitating episodes in the prior month. The Veteran denied using an assistive device. The examiner opined that the Veteran's cervical spine disability did not impact his ability to obtain or maintain employment. Again, the Board finds that this examination does not show evidence of forward flexion limited to 15 degrees or less, nor does it show evidence of ankylosis, thus a schedular rating in excess of 20 percent cannot be assigned. Finally, on February 2, 2017, the Veteran was again evaluated. The examiner recorded the Veteran's statements regarding flare ups, to which the Veteran said "I try to rest and use pain medications." He did not indicate further loss of range of motion. Upon testing, forward flexions was limited to 35 degrees with a total combined range of motion of 230 degrees. The examiner stated that activities of daily living would be limited to those which did not require full and normal rotation of the cervical spine. Pain was noted on the exam, but did not result in result in or cause additional functional loss. There was no evidence of pain in weight bearing vs. non-weight bearing movement and no pain with passive movement. Upon repetitive use testing, forward flexion was limited to 30 degrees. The examiner stated that pain, weakness, fatigability, or incoordination could limit functional ability during a flare up, however, to what extent such limitations occurred could not be stated without resort to speculation, as it would involve opinion on a possible future event. No muscle spasm was found, although guarding was observed; guarding did not result in abnormal gait or spinal contour. Muscle strength was normal. Reflexes were hypoactive. There was no evidence of ankylosis. Although IVDS was noted, it did not result in incapacitating episodes in the prior 12 months. The Veteran denied using any assistive device. The examiner stated that the Veteran's cervical spine condition did not impact his ability to obtain or maintain employment. Again, the Board observes that absent evidence of forward flexion limited to 15 degrees or less, or evidence of ankylosis, a rating in excess of 20 percent cannot be granted. In sum, the Board finds that prior to February 4, 2013, the Veteran's forward flexion was greater than 30 degrees, with a combined range of motion of 310 degrees, which falls between 170 and 335 degrees; further, guarding, tenderness, or spasm did not result in abnormal spinal contour or gait; thus, a 10 percent rating is appropriate. From February 4, 2013, the Veteran's forward flexion has been limited to 30 degrees or less, but never to 15 degrees or less. At no point has there been any evidence of ankylosis. As such, the Board will grant an earlier effective date for the grant of 20 percent, but declines to grant a rating in excess of 20 percent for any period on appeal. The Board has considered the Veteran's own statements regarding the severity of his flare-ups, but finds that they would not provide for a higher rating at any period on appeal. Indeed, the Veteran's own statements to the examiners regarding flare-ups only address the need for rest and use of pain medication, as well as some specific physical limitations to lifting and overhead activities, but do not indicate any further loss of functional range of motion that would give rise to a higher rating. As such, the Board cannot grant a higher rating based on the diagnostic criteria. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). Finally, the Board notes that when adjudicating increased rating claims for spinal disabilities, the rating assigned for any associated neurological disabilities should also be addressed. 38 C.F.R. § 4.71a, Note 1 (2017). In this case, the Veteran was recently granted service connection for a bilateral disability of the median nerve, affecting both upper extremities; however, the Veteran has filed a separate appeal regarding the rating for those disabilities, and the RO is in the process of developing that claim separately from this claim presently on appeal. As such, the Board will not address the rating for the neurological upper extremity disabilities at this time so as to not interfere with the pending claim. B. Lumbosacral Spine The Veteran is service connection for diffuse disc bulging of the lumbosacral spine (L2-L3 to L5-S1) with mild narrowing, presently rated as 10 percent disabling prior to September 12, 2014, and as 20 percent disabling thereafter. He asserts that higher ratings are in order. The Veteran's lumbosacral spine disability is rated under Diagnostic Code 5237-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2017). In this case, The Board acknowledges that the use of a hyphenated diagnostic code here does not confirm to the standard described immediately above. It appears in this case that the RO has utilized a hyphenated diagnostic code- not to indicate that the Veteran has a disease, injury, or residual condition which is unlisted in the rating code- but simply as a means of more accurately capturing the nature of the Veteran's service-connected disability. The hyphenated diagnostic code indicates degenerative arthritis of the spine associated with lumbosacral strain. Regardless, this atypical use of a hyphenated diagnostic code does not impact the Board's analysis as both DC 5237 and 5242 apply the General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. Under the General Rating Formula applicable to the thoracolumbar spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. 38 C.F.R. § 4.71a, DC 5237-5243 (2017). A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Id. Again, the Board observes that a disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Here the Board finds that increased ratings should not be assigned. The Veteran was evaluated in December 2010, at which time Forward flexion of the thoracolumbar spine was to 85 degrees, with a combined range of motion of 225 degrees. Although pain was noted on active motion and following repetitive motion, it did not result in additional limitation of range of motion. Muscle strength and reflexes were normal. The Veteran was presently self-employed, having lost approximately one week of work in the prior year due to his various injuries. The examiner stated that his cervical and lumbar conditions would likely result in assignment of different duties due to problems with decreased mobility, lifting and carrying. Recreational activities such as sports would likely be precluded, but activities of daily living such as bathing, toileting, dressing and grooming were not affected. No ankylosis was found. Applying the diagnostic criteria to the evidence from this examination, a 10 percent rating is the maximum rating the Board can assign. A January 26, 2011, VA treatment records noted normal range of motion for the lumbar spine, although not elaborating on that statement. The February 4, 2013 VA examination only addressed the Veteran's cervical spine disability, and did not address limitation sue to his thoracolumbar spine disability (in fact, it did not acknowledge that disability at all). On September 12, 2014, the Veteran was afforded a new VA examination in support of his increased rating claim. The examiner noted pain in the lumbar region of the back, with flare-ups occurring upon prolonged ambulation, stooping, or heavy lifting. Forward flexion was limited to 35 degrees, with evidence of pain at 5 degrees, although not resulting in additional loss of range of motion upon repetitive testing. Combined range of motion was 135 degrees. The examiner noted that pain resulted in less movement than normal and pain on movement. Localized tenderness was noted at the paravertebrals, but did not result in abnormal gait or spinal contour. Muscle spasm and guarding were present, but also did not result in abnormal gait or spinal contour. Strength and reflexes were normal. No IVDS was found. There was no evidence of ankylosis. The examiner stated that the disability was moderate in intensity. Although pain could limit functional ability during a flare-up or when the joint is used over a period of time, there was no evidence of weakness, fatigability, or incoordination at that time. To what degree the Veteran's pain could cause additional limitation, the examiner could not state because that would be speculative of a future event. Here, the Board notes that the Veteran's range of motion was not limited to 30 degrees or less, nor wat there any evidence of ankylosis. As such, a rating in excess of 20 percent cannot be granted based on this medical evidence. An October 2015 VA examination revealed pain in the lumbar area, described by the Veteran as "muscle tightness," which he felt limited his ability to lift heavy objects. He reported needing to rest during a flare-up, and use pain medication. He specifically stated that his disability affected his daily life in that it limited his ability to life heavy objects. Forward flexion was to 60 degrees, with a combined range of motion of 205 degrees. Pain was noted on exam, particularly with weight bearing motion, but did not result in any additional functional loss. Localized tenderness was noted. Repetitive use testing was not conducted. The examiner stated that the Veteran's reports of flare-ups were within consistency with the examination. Muscle strength and reflexes were normal. Guarding and muscle spasm were noted, but did not result in any abnormal gait or spinal contour. No IVDS was diagnosed. No neurological abnormalities were found. No ankylosis was noted. The examiner stated that his occupational activities were restricted in that he could not engage in back twisting, extreme bending movements, heavy lifting, pushing or pulling, and prolonged standing or prolonged ambulation. Again, the Board observes that the Veteran's forward flexion of the thoracolumbar spine was limited to greater than 30 degrees but not greater than 60 degrees and there was no evidence of ankylosis. As such, a rating in excess of 20 percent cannot be assigned under the applicable diagnostic criteria. Most recently, the Veteran was afforded a new VA examination in February 2017. At that time, the Veteran described his pain in the lumbar spine as intermittent although stabbing in sensation when it occurs. Pain was precipitated by walking, sitting or standing for long periods of time. He reported difficulty with walking when having a flare-up, but did not report any additional loss of range of motion. Forward flexion was limited to 50 degrees, with a combined range of motion of 150 degrees. Pain was noted on examination, but did not result in or cause functional loss. There was no evidence of pain with weight bearing. There was no evidence of localized tenderness. Repetitive use testing did not result in additional loss of range of motion. The examination was not conducted during a flare-up, and further functional loss during such a flare up could not be stated without resort to speculation. Muscle strength and reflexes were all normal. Although IVDS was noted, there had been no episodes resulting in incapacitation in the prior 12 months. The Veteran regularly used a back brace. No ankylosis was noted. Testing on passive vs. active range of motion and weight bearing vs. non-weight bearing motion could not be accomplished as the lumbar spine is not considered a joint. Again, this examination does not reveal forward flexion of the thoracolumbar spine of 30 degrees or less, nor does it provide any evidence of ankylosis. In sum, the Board has carefully reviewed the medical evidence of record, as well as the Veteran's own statements regarding severity and flare-ups, and found no evidence that would support a higher rating based on the schedular criteria. Prior to September 12, 2014, the Veteran's range of motion resulted in, at maximum, forward flexion of the thoracolumbar spine of 85 degrees and a combined range of motion of 225 degrees, a finding which is accommodated by a 10 percent rating. There was no evidence that factors such as tenderness, spasm or guarding to result in abnormal spinal contour or gait and no evidence of ankylosis. As such, a 10 percent disability rating is the maximum the Board can assign prior to that date. Likewise, from September 12, 2014, to the present, the Veteran's forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less. Neither has there been any evidence of ankylosis. Thus, the diagnostic criteria do not allow the Board to assign a rating in excess of 20 percent for that period on appeal. The Board has considered the Veteran's own statements regarding the severity of his flare-ups, but finds that they would not provide for a higher rating at any period on appeal. Indeed, the Veteran's own statements to the examiners regarding flare-ups only address the need for rest and use of pain medication, but do not indicate any further loss of functional use that would give rise to a higher rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C. Left Shoulder The Veteran is presently service connected for left shoulder impingement syndrome, presently rated as 10 percent disabling prior to February 2, 2017, and as 20 percent disabling thereafter. He asserts he is entitled to higher ratings for that disability. As an initial matter, the Board takes notice that the Veteran is right handed, and therefore his left arm is to be addressed as the minor arm. The Veteran's left shoulder impingement syndrome is rated under Diagnostic Code 5019-5201. Here, DC 5019 compensates for bursitis, which is rated on limitation of motion for the affected part. See 38 C.F.R. § 4.71a, DC 5019 (2017). DC 5201 evaluates the shoulder and arm based on limitation of motion. Specifically, a minor arm is assigned a 20 percent rating when the arm is limited to motion at either the shoulder level, or midway between the side and shoulder level. A 30 percent rating is assigned when the minor arm is limited in motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201 (2017). Under the various other available diagnostic criteria, the shoulder may also be rated based on ankylosis, impairment of the humerus, or impairment of the clavicle or scapula. The medical evidence of record, however, does not support such pathology in this case, and therefore those diagnostic codes are not relevant in this matter. Again, the Board observes that a disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The Board finds that a 20 percent rating should be assigned from September 12, 2014, earlier than the present grant of 20 percent, but that prior to that date, a 10 percent rating is the maximum available rating under the diagnostic criteria. The Veteran was afforded a VA examination in December 2010. At that point, range of motion of the left shoulder showed total and complete flexion and abduction to 180 degrees each. Left internal and external rotation were limited to 65 degrees each. There was objective evidence of pain with active motion, but it did not result in any additional limitations after repetition. There was no evidence of ankylosis. There was no evidence of incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, or effusion. He reported tenderness in the shoulder, with flare-up occurring with overhead activities. In terms of limitations on activities of daily living, the examiner stated that he would have difficulty with overhead activities. Here, the Board observes that there is no evidence that the Veteran's shoulder was limited to movement at shoulder level (in fact, his flexion and abduction was total and complete at 180 degrees). Even considering the Veteran's own statements regarding flare-ups, he is still only affected when he engages in overhead activities, which is greater than 90 degrees. As such, a higher rating cannot be assigned based on the diagnostic criteria for a shoulder disability. On September 26, 2012, the Veteran was again evaluated for his shoulder disability. The Veteran reported that his shoulder disability involved pain and cramps, worse at night, related to posture. He reported being unable to work in his pizzeria when he experienced a flare-up. Flexion was to 170 degrees, with objective evidence of pain at 150 degrees. Abduction was to 170 degrees with objective evidence of pain at 150 degrees. After repetitive use testing flexion ended at 160 degrees and abduction ended at 155 degrees. Functional loss was due to pain on movement. There was evidence of localized tenderness. He did not engage in guarding of the shoulder. Muscle strength was complete and normal. There was no evidence of ankylosis. There was no history of recurrent dislocation. The examiner noted an increase in muscle tone at the left upper trapezius and rhomboid muscles. The examiner described the Veteran's shoulder condition as impacting his ability to complete above the shoulder repetitive movements. Again, the Board has considered this examination report, but found that it does not support a finding that the Veteran's range of motion was limited to the shoulder level or less. Indeed, even with objective evidence of pain and repetition noted, he was able to move his arm between 155 and 160 degrees. As this exceeds the 90 degree threshold for limitation to the shoulder level, an increased rating cannot be assigned based on the diagnostic criteria. On September 12, 2014, the Veteran was again evaluated in connection with his claim. At that time, the Veteran reported flare-ups affecting overhead activities. Left shoulder flexion was to 140 degrees with evidence of pain at 5 degrees. Abduction was to 130 degrees with evidence of pain at 5 degrees. After repetitive use, flexion was limited to 135 degrees and abduction was not further limited beyond 130 degrees. The examiner stated that functional loss was due to excess fatigability and pain on movement. He did experience tenderness on palpation and guarding of the left shoulder. Muscle strength testing showed active movement against some resistance. There was no evidence of ankylosis. The Veteran had a positive Hawkins' Impingement Test, empty-can test, external rotation/Infraspinatus strength test, lift-off subscapularis test, crank apprehension and relocation test, and cross-body adduction test. Here, the Board observes that the Hawkins', empty-can, externa rotation, and crank apprehension tests all indicate pain and instability at 90 degrees. Therefore, affording the Veteran the benefit of the doubt, the Board will assign a 20 percent rating from this date based on limitation of motion to 90 degrees, based on pain and weakness at the shoulder level. However, a rating in excess of 20 percent cannot be granted. The Veteran's limitation of motion is not demonstrated to be limited to 25 degrees or less. Although the examiner stated that pain at the shoulder area could significantly limit functional ability during flare-ups, to what degree could not be stated as it would be speculative of a future episode. However, the Veteran himself reported to the examiner that his flare-ups only occur with overhead activity. As such, the Board finds that this does not demonstrate a limitation beyond the 90 degrees demonstrated by the various joint testing in this examination. As such, a 20 percent rating is assigned based on the diagnostic criteria from this date forward. Finally, on February 2, 2017, the Veteran was again afforded a VA examination. At that time, he stated that he continued to have pain at the left shoulder joint during sleep hours and while doing overhead activities. He denied flare-ups at that time. He stated that in terms of functional loss, he felt limited in his ability to carry heavy objects with his left arm. Flexion and abduction were both limited to 170 degrees. External rotation and internal rotation were both complete to 90 degrees with no functional loss. Pain was noted on exam, but did not result in or cause any additional functional loss. There was no evidence of pain with weight bearing or non-weight bearing and no pain on passive motion. There was evidence of localized tenderness on palpation of the joint. There was no additional function loss on repetition. There was no ankylosis. The Veteran again demonstrated a positive Hawkins' Impingement Test, indicating pain on internal rotation at 90 degrees. There was no evidence of instability, dislocation or labral pathology. The examiner stated that the condition did not have any impact on his ability to perform any type of occupational tasks such as standing, walking, lifting or sitting. Here, again, the Board observes that this examination does not show limitation of range of motion to 25 degrees or less. Even though the examiner stated that the disability could potentially cause functional limitations during periods of repetitive use or over time, but could not specifically say to what degree that would limit movement, the Veteran himself reported having issues with overhead movement only. As this does not support a finding that the arm movement is limited to 25 degrees from the side or less, a rating in excess of 20 percent cannot be granted. In sum, in contemplation of the Veteran's medical evidence and his own statements regarding pain and flare-ups, the Board finds that prior to September 12, 2014, the Veteran's left shoulder impingement syndrome has not limited his range of motion to 90 degrees or less, and as such, a rating in excess of 10 percent should not be assigned. From September 12, 2014, a 20 percent rating is the maximum rating available under the diagnostic criteria because the Veteran showed evidence of pain and weakness from 90 degrees, or shoulder level. However, at no point on appeal has the Veteran's range of motion in his shoulder been limited to 25 degrees from the side, or less, and therefore a rating in excess of 20 percent cannot be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The Court of Appeals for Veteran's Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the rating criteria contemplate the Veteran's neck, back and shoulder disabilities and that the Veteran's service-connected disabilities are productive of symptoms specifically identified in the Rating Schedule, such as loss of ambulation, and range of motion. Thus, thus the manifestations of his various disabilities are contemplated by the schedular rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's psychiatric disability and referral for consideration of extraschedular rating is not warranted. III. TDIU A Veteran will be entitled to TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2017). To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2."). In the instant matter, the record reflects that the Veteran has been unemployed since April 2013. Specifically, although his most recent claim for TDIU indicated he stopped working in December 2012, his initial claim, received in June 2013, stated that he last worked in April 2013. VA treatment records from February 2013 also indicate that the Veteran was presently employed. As such, the Board will use the April 2013 date as the first date of unemployment. Since at least February 14, 2012, the Veteran has been service-connected with a combined rating of 70 percent disabled, to include an assignment of 50 percent for service-connected sleep apnea. As such, he meets the statutory threshold for consideration of TDIU. The Veteran's VA examinations with regard to his shoulder, neck and back have been discussed above and are incorporated into this portion of the decision. As addressed above, those examinations have found him generally able to work, with his disabilities affecting activities such as back twisting, extreme bending movements, heavy lifting, overhead activities, pushing or pulling, and prolonged standing or ambulation. The evidence of record also indicates that as of February 2017, his tinea unguium affects no more than three toenails, not resulting in any debilitating or non-debilitating episodes in the prior year. The Veteran's inguinal hernia is small, readily reducible, and can be supported by a truss or belt; it only limits his ability to carry heavy things and engage in duties that require pushing or pulling functions, the same functions limited by his back, neck and shoulder disabilities. The Veteran's sleep apnea has not been evaluated since January 2013, however, at that time, his sleep apnea was found to result in mild to moderate functional impairment due to daytime hypersomnolence, likely the result of refusing to use his C-pap machine. At the time, it was noted that he continued to be self-employed. There is no indication in the record that his tinnitus or spondylitic changes at the right side of the sternum impair his ability to work. There is no evidence that the Veteran's median nerve disabilities affect his daily life beyond cramping in the arms. Having reviewed the medical and lay evidence of record, the Board has determined that none of the Veteran's service-connected disabilities, either individually or together, preclude him from obtaining or maintaining substantially gainful employment consistent with his education and past occupational experiences. In making this determination, the Board acknowledges the Veteran's assertions that his service-connected disabilities impair his functioning to some degree. In fact, it is for that very reason that service connection was established and compensable ratings assigned in the first place; however, the evidence of record reflects that the Veteran's disabilities only interfere with extreme physical activities, and do not preclude sedentary employment. Further, despite his leaving his job in 2013, the Board finds that the Veteran is capable of maintaining at least sedentary work. Prior to quitting his job in 2013, the Veteran was self-employed at his own pizzeria, implying that he is capable of running and maintaining a business and is not limited to physical labor. The Veteran also has testified in his hearing that continues to search for employment, but that his age is a limiting factor. Unfortunately, age is not a service-connected disability. Rather, his disabilities only preclude physical activities such as prolonged ambulation, overhead activities, heavy lifting, and heavy pushing or pulling. As such, the preponderance if the evidence is against a finding that the Veteran is unemployable. In reaching this conclusion, the Board has considered all evidence of record; however, because the preponderance of the evidence is against the claim for TDIU, the "benefit-of-the-doubt" rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Prior to February 4, 2013, a rating in excess of 10 percent for a cervical spine disability is denied. Between February 4, 2013, and September 12, 2014, a 20 percent rating for a cervical spine disability is granted. From September 12, 2014, a rating in excess of 20 percent for a cervical spine disability is denied. Prior to September 12, 2014, a rating in excess of 10 percent for a lumbosacral spine disability is denied. From September 12, 2014, a rating in excess of 20 percent for a lumbosacral spine disability is denied. Prior to September 12, 2014, a rating in excess of 10 percent for left shoulder impingement syndrome is denied. Between September 12, 2014, and February 2, 2017, a 20 percent rating for left shoulder impingement syndrome is granted. From February 2, 2017, a rating in excess of 20 percent for left shoulder impingement syndrome is denied. Entitlement to TDIU is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs