Citation Nr: 18118902 Decision Date: 07/17/18 Archive Date: 07/17/18 DOCKET NO. 05-14 402 DATE: July 17, 2018 ORDER Entitlement to an initial rating for service-connected lumbar strain in excess of 10 percent prior to January 27, 2006 is denied. Entitlement to an initial rating of 40 percent, but no higher, for service-connected lumbar strain from January 27, 2006 to October 31, 2006 is granted, subject to the payment of monetary benefits. Entitlement to an initial rating for service-connected lumbar strain in excess of 20 percent since November 1, 2006 is denied. Entitlement to an increased rating for service-connected cervical spine residuals of a herniate nucleus pulpous (HNP) in excess of 30 percent prior to September 7, 2016, and 20 percent thereafter is denied. Entitlement to an initial rating for service-connected right upper extremity radiculopathy in excess of 20 percent prior to September 7, 2016, and 40 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 7, 2016 is denied. FINDINGS OF FACT 1. Prior to January 27, 2006 the Veteran’s service-connected lumbar strain was manifested by pain and limitation of motion greater than 60 degrees flexion and a combined range of motion of the thoracolumbar spine greater than 120 degrees. 2. From January 27, 2006 to October 31, 2006 the Veteran’s service-connected lumbar strain was manifested by pain and limitation of motion with 30 degrees or less flexion. 3. Since November 1, 2006 the Veteran’s service-connected lumbar strain is manifested by pain and limitation of motion greater than 30 degrees flexion. 4. Prior to September 7, 2016 the Veteran’s service-connected cervical spine residuals of a HNP is not manifested by unfavorable ankylosis of the entire cervical spine. 5. After September 7, 2016 the Veteran’s service-connected cervical spine residuals of a HNP is manifested by pain and limitation of motion with flexion greater than 15 degrees. 6. Prior to September 7, 2016 the Veteran’s service-connected right upper extremity radiculopathy is manifested by no more than mild incomplete paralysis of the peripheral nerves. 7. After September 7, 2016 the Veteran’s service-connected right upper extremity radiculopathy is manifested by no more that moderate incomplete paralysis of the peripheral nerves. 8. Prior to September 7, 2016 the probative evidence of record is against a finding that the Veteran was unable to secure or follow substantially gainful employment commensurate with her education and experience as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to January 27, 2006 for service-connected lumbar strain have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for an initial 40 percent rating, but no higher, from January 27, 2006 to October 31, 2006 for service-connected lumbar strain have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 3. The criteria for an initial rating in excess of 20 percent since November 1, 2006 for service-connected lumbar strain have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 4. The criteria for a rating in excess of 30 percent prior to September 7, 2016 and 20 percent thereafter for service-connected cervical spine residuals of a HNP have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 5. The criteria for an initial rating in excess of 20 percent prior to September 7, 2016 and 40 percent thereafter for service-connected right upper extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8511. 6. The criteria for entitlement to a TDIU prior to September 7, 2016 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to August 1993 and March 2003 to March 2004. In October 2011 the Veteran testified during a video conference hearing. A transcript of that hearing is of record. The Acting Veterans Law Judge who conducted the October 2011 hearing is no longer available to decide the appeal. In March 2018 the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2015, the Veteran filed a power of attorney in favor of Virginia A. Girard-Brady, thereby revoking the power of attorney of record. In October 2015, the Department of Veterans Affairs (VA) received a statement from Ms. Girard-Brady notifying VA of the withdrawal of representation. As the Veteran has not appointed another representative she is unrepresented in this matter. In April 2012 and August 2016 the Board of Veterans’ Appeals (Board) remanded the issues on appeal for additional development. The issues have now been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Lumbar Strain Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, none of the competent evidence suggests IVDS in the thoracolumbar spine has caused incapacitating episodes of the duration required for higher ratings. During the appeal period the Veteran underwent VA examinations in August 2004, January 2006, November 2006, March 2010, November 2013 and March 2017. Prior to January 27, 2006 Range of motion testing was performed on examination. During the August 2004 examination the Veteran’s lumbar spine had normal range of motion with no tenderness. The Veteran reported pain bending over, pulling, pushing, and walking. She reported increased pain during flare-ups that occurred about three times per month that lasted from a few hours to a few days. The examiner reported that the Veteran had normal posture and gait. Treatment records during this period are consistent with examination findings. Prior to January 27, 2006 the record, to include the Veteran’s statements, does not reflect that the Veteran had forward flexion of the thoracolumbar spine greater to 60 degrees or less, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, ankylosis of the thoracolumbar spine, 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. Thus, a higher rating is not warranted during this period. January 27, 2006 to October 31, 2006 During the January 2006 examination range of motion testing showed limitation of motion to 30 degrees flexion, with an additional limitation of 10 degrees due to pain, stiffness, and lack of endurance following repetitive use. The Veteran reported she avoids lifting, pulling, and pushing. She reported that her day to day activities are affected by pain on strenuous activities especially twisting, turning, lifting, bending, stooping, and sitting more than 20 minutes. She reported that she must change positions frequently and is unable to walk more than 100 yards and has pain after standing more than 15 minutes and experiences sleep disturbance. Treatment records during this period are consistent with examination findings. From January 27, 2006 to October 31, 2006 the record, to include the Veteran’s statements, reflects that the Veteran had forward flexion of the thoracolumbar spine to 30 degrees or less. The Board acknowledges that the Veteran is a nurse; however, neither the medical evidence nor the Veteran’s statements show that she has unfavorable ankylosis of the entire thoracolumbar spine, necessary for a higher rating. Thus, a 40 percent rating, but no higher, is warranted during this period. Since November 1, 2006 As noted, the Veteran underwent VA examinations in November 2006, March 2010, November 2013 and March 2017. During this period range of motion testing showed, at worst, forward flexion to 50 degrees and a combined range of motion no less than 145 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s statements. While the Veteran has essentially stated that she has reduced motion in her spine, she has not described a range of motion which would warrant a higher rating. In this regard, during the November 2013 VA examination she reported that she misses about one to two days of work due her lumbar spine strain. The examiner found that there was no functional impact with flare-ups. During the March 2017 VA examination she reported low back muscle spasm with intermittent shooting pain down the right or left leg. She reported difficulty sleeping due to low back pain. She did report flare-ups but described the flare-ups as consisting of increased pain. Likewise, at her October 2011 hearing she reported missing 15 to 18 days of work due to her lumbar spine strain and during her March 2018 hearing she stated she uses a brace and cane, has muscle spasms severe enough to cause difficulty walking that occur once a month and last a week and a half. The Board acknowledges that the Veteran is a nurse; however, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-ups or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, a higher rating during this period is not warranted based on limitation of motion. The Board has also considered whether separate ratings could be assigned based on neurological symptomatology. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). However, the Veteran is already assigned separate disability ratings for the right and left lower extremity. Additional separate ratings are not warranted. As the preponderance of the evidence is against a finding that the Veteran’s disability more nearly approximates the criteria for higher ratings, higher ratings are not warranted. 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Cervical Spine Residuals of a HNP As relevant to the cervical spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, the July 2013 and March 2017 examiners diagnosed IVDS, but reported incapacitating episodes of the requisite duration to support a higher disability rating are not shown. The September 2016 examiner reported there was no IVDS of the cervical spine. During the appeal period the Veteran underwent VA examinations for the cervical spine in July 2013, September 2016, and March 2017. Prior to September 7, 2016 To warrant a higher rating for the cervical spine disability prior to September 7, 2016 the evidence would need to show favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. The July 2013 VA examination did not reveal ankylosis of the cervical spine. The Veteran reported throbbing pain on a regular basis. She reported flare-ups that consisted of pain, stiffness, and muscle spasms two to three times a month that last for two to three days. She reported decreased range of motion during flare-ups, pain in the neck and arm, and difficulty sleeping and getting comfortable. As noted, the Veteran is a nurse; however, the Veteran’s statements do not indicate that she had ankylosis of the cervical spine. None of the other evidence reflects that the Veteran’s cervical spine disability is manifested by ankylosis of the entire cervical spine. Id. As such, a rating in excess of 40 percent is not warranted prior to September 7, 2016. After September 7, 2016 After September 7, 2016 range of motion testing was performed and showed, at worst, forward flexion to 30 degrees and ankylosis was not present. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s statements. While the Veteran has essentially stated that she has reduced motion in her cervical spine, she has not described a range of motion which would warrant a higher rating. In this regard, during the September 2016 and March 2017 examinations she reported pain and stiffness and an inability to turn her neck from side to side. She did report flare-ups but described the flare-ups as consisting of increased pain and intermittent muscle spasms. She reported that she missed about 10 days of work over the past 12 months due to neck and low back pain. Likewise, at her March 2018 hearing she stated that she has muscle spasms once a month and that she has difficulty walking. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, a higher rating after September 7, 2016 is not warranted based on limitation of motion. The Board has also considered whether separate ratings could be assigned based on neurological symptomatology. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). However, the Veteran is already assigned separate disability ratings for neurological impairment of the right and left upper extremities. Additional separate ratings are not warranted. As the preponderance of the evidence is against a finding that the Veteran’s disability more nearly approximates the criteria for higher ratings, higher ratings are not warranted. 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 369-370. 3. Right Upper Extremity Radiculopathy The Veteran’s right upper extremity radiculopathy is evaluated using Diagnostic Code 8510. Under that diagnostic code, for both the major and minor arms, mild incomplete paralysis warrants a 20 percent evaluation. Moderate incomplete paralysis warrants a 30 percent rating for the minor arm and a 40 percent rating for the major arm. Severe incomplete paralysis warrants a 40 percent rating for the minor arm and a 50 percent rating for the major arm. Complete paralysis, all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, warrants a 60 percent rating for the minor arm and 70 percent rating for the major arm. 38 C.F.R. § 4.124a, Diagnostic Code 8510. There is some indication of multiple radicular groups being affected in the upper extremities. The ratings assigned for mild and moderate incomplete paralysis are the same whether looking at the upper radicular group (Diagnostic Code 8510), middle radicular group (Diagnostic Code 8511), lower radicular group (Diagnostic Code 8512), or all radicular groups (Diagnostic Code 8513). 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Although the use of the terms “mild,” “moderate,” and “severe” by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. During the appeal period the Veteran underwent VA examinations in July 2013, September 2016, and March 2017. The record reflects that the Veteran is right hand dominant. The July 2013 examiner diagnosed radiculopathy of the bilateral upper extremities. She reported the Veteran experiences mild intermittent pain and mild paresthesias and/or dysthesias of the right upper extremity. She reported that the Veteran did not have any other signs or symptoms of radiculopathy. The examiner described the Veteran’s right upper extremity radiculopathy as mild. No other neurologic abnormalities related to the cervical spine were noted. The September 2016 VA examiner reported that the Veteran experiences decreased light touch to the hands and fingers, mild constant pain, moderate paresthesias and/or dysthesias, and severe numbness of the right upper extremity. He described the Veteran’s right upper extremity radiculopathy as moderate. No other neurologic abnormalities related to the cervical spine were noted. During the March 2017 VA examination the Veteran reported she experiences intermittent cold or warm flashes down her arms and occasional shooting pain down both arms and some numbness and tingling. Right upper extremity reflexes were hypoactive. The examiner reported that the Veteran experiences mild intermittent pain, paresthesias and/or dysthesias, and numbness of the right upper extremity. He described the Veteran’s right upper extremity radiculopathy as mild; no other neurologic abnormalities were noted. Likewise, during the March 2018 Board hearing the Veteran testified that she felt pain in the right upper extremity, coldness going down her arms, tingling, and numbness in the fingers. Treatment records during the appeal period are not inconsistent with examination findings. The evidence as a whole does not demonstrate right upper extremity radiculopathy that more nearly approximates moderate (as opposed to mild) incomplete paralysis prior to September 7, 2016 or severe (as opposed to moderate) incomplete paralysis of the affected nerve thereafter. See 38 C.F.R. § 4.124a. As the preponderance of the evidence is against a finding that the Veteran’s disability more nearly approximates the criteria for higher ratings, higher ratings are not warranted. 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 369-370. TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded by reason of service-connected disabilities from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a veteran is entitled to a TDIU, neither the veteran’s non-service-connected disabilities nor age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran’s education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The record reflects that Veteran has a combined disability rating of 100 percent effective September 7, 2016. During the period in question (prior to September 7, 2016), service connection was in effect for the following disabilities (at least for some of the period): posttraumatic stress disorder (PTSD) with major depressive disorder, right upper extremity radiculopathy, headaches, lumbar strain, cervical spine disability, radiculopathy of the lower extremities, bilateral knee patellofemoral syndrome, and left adnexal cyst. In a November 2009 statement the Veteran asserted that she was no longer able to work in the Intensive Care Unit (ICU) due to the high incidence of cases; she reported that she was more withdrawn and depressed. Military personnel records reflect that the Veteran was a food service specialist and trained as an emergency medical technician and in advanced prehospital trauma life support. In statements to clinicians the Veteran reported that she completed high school, attained an Associate’s Degree in Science and a Bachelor’s Degree in Business Communication. The record reflects that the Veteran works as a nurse. During a November 2009 VA PTSD examination the Veteran reported that she lost seven to eight days of work over the past year due to her PTSD symptoms. The examiner reported the Veteran’s PTSD symptoms are moderate to occasionally severe and most symptoms are present on a daily basis. Her memory loss was described as mild and causes occasional problems with supervisors at work. The Veteran reported that at work she was feeling more out of control and having more temper outbursts. The examiner reported that the Veterans PTSD symptoms result in reduced reliability and productivity due to PTSD signs and symptoms. The March 2010 VA examination reflects that the Veteran was on light duty at work. The report reflects that the Veteran had incapacitating episodes lasting two days for the cervical region and lasting seven days due to the thoracolumbar region. During the July 2011 VA examination she reported that she missed ten to 12 days of work in the past 12 months due to her headaches. The Veteran reported the headaches are prostrating and last for a few hours to two days. The July 2013 VA examiner reported that due to the Veteran’s cervical spine disability her neck is painful all the time, she is limited with lifting and needs frequent position changes. The examiner reported the Veteran has limitations walking due to her low back pain. The November 2013 VA examiner reported that the Veteran misses about one to two days of work as a nurse due to her lumbar spine disability. During the March 2015 VA examination the Veteran reported that she estimates missing 10 days of work in the past 12 months due to her bilateral knee disabilities and she estimated being late to work 15 times in the last 12 months. She reported that she is on permanent light duty for her back disability, but not for her knees. She reported that light duty consists of avoiding caring for the more critical patients which would require lifting, pushing, or pulling. She reported she takes care of ambulatory patients and passing medications and that she still works a full-time schedule. In December 2013 the Veteran underwent a vocational services evaluation. The vocational services consultant conducted an informal interview with the Veteran and reported that the Veteran’s service-connected disabilities impact her ability to move and physically manipulating her environment. He noted that during the October 2011 Board hearing the Veteran reported that she had missed 15 to 18 days of work due to her back disability. He reported that the Veteran has difficulty climbing stairs, performing repetitive motions, difficulty physically accessing or moving about the workplace and limitations, sitting, standing, crouching, reaching lifting, carrying, handling, and moving objects. He reported that she has decreased dexterity due to her upper extremity radiculopathy. The Veteran reported she has a history of conflict with her coworkers, supervisors and patients. The consultant reported the Veteran’s frustration and isolation impact her ability to manage her interactions at work and home in an effective and efficient manner. The Veteran reported that her service-connected disabilities cause her to be unable to work at an acceptable pace and result in an in ability to maintain acceptable attendance at work. The vocational services consultant reported that the Veteran has acquired transferable skills of supervisory experience, scheduling office skills, data entry, training skills, inventory control, cashier experience, and typing skills. He reported that these skills if used in the same occupation without retraining or education, have been compromised by the limitations caused by the Veteran’s service-connected disabilities, and have become barriers to her employment as they involve communication, work tolerance, self-direction and interpersonal skills. He recommended that the Veteran is currently totally unable to obtain and maintain any substantially competitive employment as a result of her service-connected PTSD, cervical stenosis, lumbar strain and bilateral lower extremity radiculopathy. Overall, the Veteran’s disabilities clearly affected her employment during the period at issue. For example, the Veteran reports missing work, being late to work, and being on light duty at work. However, the evidence indicates she was able to maintain employment. The Board notes that the Veteran has not submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) which would reveal more about her occupational experience; however, what is clear is that the Veteran was working during the period at issue here. Notably, during a March 2015 VA knee examination the Veteran told a VA examiner she was still working a full-time schedule, 8 hours per day. At her hearing the Veteran again reported working in nursing on light duty. Even the 2013 vocational assessment notes her continued employment as a nurse. While the Veteran’s job duties may have changed in that she was taking care of ambulatory patients and passing out medication, it does not appear that she was working in a protected environment such as a family business or sheltered workshop. Thus, her employment was not marginal. While lengthy, the vocational assessment from 2013 is afforded limited probative weight and is outweighed by the fact that the Veteran has maintained full-time employment. The vocational specialist notes multiple times that the Veteran continues to work as a nurse but then opines that “it is quite evident that [the Veteran] is unemployable.” These statements are contradictory and the opinion does not satisfactorily explain this contradiction. Again, the Board is not finding that employment was not affected prior to September 7, 2016. Instead, the Board is finding that with a college degree, experience as a nurse, and continued full-time employment as a nurse, the evidence is against a finding that the during the period in question the Veteran’s service-connected disabilities affected her such that she could not obtain and maintain gainful employment. (CONTINUED ON NEXT PAGE) Given the above, the Board finds that the criteria for entitlement to a TDIU prior to September 7, 2016 are not met. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel