Citation Nr: 21074602 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-06 337 DATE: December 15, 2021 ORDER Entitlement to a disability rating of 40 percent, but no more, for thoracolumbar strain from August 12, 2004 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating of 20 percent, but no more, for radiculopathy of the right lower extremity from August 12, 2004 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating of 20 percent, but no more, for cervical strain from August 12, 2004 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU) is granted on and after August 12, 2004. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's thoracolumbar strain manifests as forward thoracolumbar flexion of 30 degrees or less, but not ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. Throughout the period on appeal, the Veteran's radiculopathy of the right lower extremity manifests as moderate incomplete paralysis of the sciatic nerve, but not moderately severe incomplete paralysis. 3. Throughout the period on appeal, the Veteran's cervical strain manifests as forward cervical flexion of 15 to 30 degrees and spasm severe enough to result in abnormal spinal contour, but not forward flexion of less than 15 degrees, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS). 4. The Veteran's service-connected disabilities have met the percentage requirements for the award of a schedular TDIU on and after August 12, 2004, and the evidence indicates that the nature and severity of these disabilities prevented her from performing gainful employment for which her education and occupational experience would otherwise qualify her during that period. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, on and after August 12, 2004, the criteria for a rating of 40 percent, but no higher, for thoracolumbar strain have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5237 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, on and after August 12, 2004, the criteria for a rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8520 (2021). 3. With resolution of reasonable doubt in the Veteran's favor, on and after August 12, 2004, the criteria for a rating of 20 percent, but no higher, for cervical strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Codes 5299-5237 (2021). 4. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU have been met on and after August 12, 2004. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1995 to September 1997. The Veteran testified before the undersigned Veterans Law Judge during a January 2021 hearing and a transcript is of record. These matters are on appeal from an August 2011 rating decision. In a March 2021 decision, the Board remanded these claims to afford the Veteran additional VA examinations. The Veteran was afforded VA examinations for back and neck conditions in July 2021. Those examinations are adequate with regard to the claims being decided below because they were based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, and because they describe her neck and back symptoms in detail sufficient to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). In a September 2021 statement, the Veteran's representative contended that the VA examinations during the period on appeal prior to June 2011 were inadequate. As discussed in further detail below, the Board agrees that the July 2005 and June 2006 VA examinations, which were the only VA examinations with regard to the issues on appeal during the period on appeal prior to June 2011, were inadequate. Neither the Veteran nor her representative have raised any other issues with the duty to notify or duty to assist with regard to the issues being decided below. 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 Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2021). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "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 higher initial evaluations, the Board has considered all evidence of severity since the effective dates for the awards of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect during the entire appeal period. 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."). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. The Veteran's thoracolumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 and her cervical strain with herniated disc is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5237. 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 evaluation assigned; the additional code is shown after the hyphen and disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." 38 C.F.R. § 4.27 (2021). 38 C.F.R. § 4.71a, Diagnostic Code 5237 pertains to lumbosacral or cervical strain. Whether under the prior or amended criteria, Diagnostic Code 5237 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2021). The General Formula was not affected by the amended criteria. With regard to the thoracolumbar spine, under the General Formula, a 10 percent rating is warranted for forward flexion of greater than 60 degrees but not greater than 85 degrees, a combined range of thoracolumbar motion greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not severe enough to result in an abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of greater than 30 degrees but not greater than 60 degrees, a combined range of thoracolumbar motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Id. A 40 percent rating is warranted for forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. With regard to the cervical spine, under the General Formula, a 10 percent rating is warranted for forward flexion of greater than 30 degrees but not greater than 40 degrees, a combined range of cervical motion greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, or localized tenderness not severe enough to result in an abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of greater than 15 degrees but not greater than 30 degrees, a combined range of cervical motion not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Id. A 30 percent rating is warranted for forward flexion of 15 degrees or less or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), under both the prior and amended criteria, allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021). For VA rating purposes, 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. Id. at Note (1). 1. Thoracolumbar Strain The Veteran contends that her low back disability warrants ratings in excess of those currently in effect. As stated above, it is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, with a 10 percent rating from August 12, 2004 to June 23, 2011 and a 40 percent rating on and after June 24, 2011. The full period of service connection is on appeal. In her August 2004 claim, the Veteran reported that sitting and standing caused her great pain, she had "very stiff joints in the morning," and she had a "hard time getting around." She did not specify which joints were affected by stiffness. In a December 2004 statement, the Veteran reported that she had difficulty working due to "extreme back pain." In a May 2005 statement, the Veteran reported that bending over had been impossible for her approximately 25 days a month for the past five months. The Veteran was afforded a VA general medical examination in July 2005. The clinician noted the Veteran's reports of pain, stiffness, burning, and numbness in her upper back, as well as her report of difficulty sleeping, sitting, and typing, but did not conduct an orthopedic examination. The Board therefore finds that the July 2005 examination report is inadequate for rating purposes and of no probative value; it will play no role in the Board's analysis. In a May 2006 statement, the Veteran reported numbness in her back and burning sensations in other areas of her back, as well as sharp pain in the middle of her back. The Veteran was afforded an additional VA general medical examination in June 2006. With regard to the functional impact of repetition over time, the clinician found that there was additional limitation of thoracolumbar function due to pain after repetitive use but made no attempt to quantify this limitation in terms of range of motion and provided no explanation for declining to do so. The United States Court of Appeals for Veterans Claims (Court) has held that there must be an adequate rationale for declining to provide an opinion with regard to the functional impact of flare ups or repetition over time. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board therefore finds that the June 2006 examination report is also inadequate for rating purposes and of no probative value; it will play no role in the Board's analysis. A July 2006 x-ray of the Veteran's lumbosacral region showed a normal lumbar spine. In a March 2008 statement, the Veteran reported severe pain in her lower back and that sitting at a computer "bother[ed]" her back. The Veteran has submitted a June 2010 medical opinion by a private physician. Although the focus of the opinion was on the issue of service connection, the physician noted the Veteran's report of "continuing back pain and neck pain only partially controlled with pain medication, which frequently limits her ability to drive or work, and an examination in the office reveals limited range of motion and tenderness with repetitive use of the cervical and thoracic spine." The physician did not quantify this limitation of range of motion. The Veteran was afforded an additional VA general medical examination on June 24, 2011. The Veteran reported limitation in walking because of pain on some days. She also reported falling due to her back condition, as well as stiffness, fatigue, spasms, decreased motion, and paresthesia, but not numbness. She reported weakness of the spine and leg, but no bowel or bladder problems in relation to her back condition. She reported constant pain traveling down her legs and feet and characterized it as severe. She added that it could be exacerbated by physical activity and stress and that, during these flare ups, her symptoms were pain, weakness, incoordination, decreased speed, and limitation of motion. She did not report any incapacitation in the preceding 12 months. She reported limited range of motion when getting into or out of a shower, motor vehicle, or chair. She reported functional impairment in the form of difficulty cleaning, cooking, driving, and typing. On examination, the Veteran's posture and gait were normal and she did not require any assistive devices for ambulation. There was no generalized muscle weakness, wasting, or atrophy due to her low back disability. There was no evidence of radiating pain on movement. Muscle spasm was absent. Tenderness was not noted and there was no guarding of movement. The examination did not reveal any weakness. Straight leg raising was negative for both legs. There was no ankylosis. Thoracolumbar motion was reported as 30 degrees of forward flexion with onset of pain at 20 degrees, 20 degrees of extension with onset of pain at 20 degrees, 15 degrees of right lateral flexion with onset of pain at 15 degrees, 15 degrees of left lateral flexion with onset of pain at 10 degrees, and 15 degrees of right and left lateral rotation with onset of pain at 15 degrees. Ranges of motion were the same on repetition and there was no additional limitation of function after repetitive use. Spinal curvature was normal. There were no sensory deficits of the left lower extremity and reflexes in that extremity were normal. There were no signs of IVDS. Based primarily on this examination report, in an August 2011 rating decision, VA assigned a 40 percent rating on and after June 24, 2011. During the January 2021 hearing, the Veteran testified that her back became stiff after sitting for long periods, that her muscles had begun to atrophy, and that her symptoms included burning, a pins-and-needles sensation, and numbness. She also testified that she had recently been in bed for days due to back pain, but did not testify that this bed rest was prescribed by a physician. The Veteran was afforded a VA examination for peripheral nerves conditions in February 2021. The Veteran reported onset of tingling and numbness in both feet in 2016 after beginning chemotherapy. The disability that created a need for chemotherapy is not service-connected. The clinician found no objective evidence of lower extremity peripheral neuropathy. The Veteran was afforded a VA examination for back conditions in July 2021. The Veteran reported sharp pain radiating across her low back, stiffness, and burning. She reported functional impact in the form of limitation in her ability to sit, stand, or move, depending on the day. She reported flare ups four times a month and characterized them as severe. She added that they lasted one to two weeks at a time and were precipitated by lifting, movement, and bending. She reported that, on some days, she was unable to bend, pick things up, or sit, and was only able to get some relief with bed rest. On examination, thoracolumbar motion was reported as normal, with 90 degrees of forward flexion with onset of pain at 50 degrees, 30 degrees of extension with onset of pain at 20 degrees, 30 degrees of right lateral flexion with onset of pain at 20 degrees, 30 degrees of left lateral flexion with onset of pain at 15 degrees, and 30 degrees of right and left lateral rotation with onset of pain at 15 degrees. The clinician clarified that the Veteran's pain caused limitation of motion. Passive range of motion testing was not performed because the Veteran was not able to tolerate passive manipulation of her spine. There was no objective evidence of crepitus, localized tenderness, or pain on palpation. Ranges of motion were the same on repetition. The examination did not take place immediately after repetition over time, but the clinician found that pain and lack of endurance would significantly limit functional ability under those circumstances. The clinician found that, under these circumstances, forward flexion would be further limited to 60 degrees and all other ranges would be limited to 20 degrees. The examination did not take place during a flare up, but the clinician found that pain, fatigability, and lack of endurance would significantly limit functional ability under those circumstances. The clinician found that, under these circumstances, forward flexion would be further limited to 50 degrees and all other ranges would be limited to 10 degrees. There was no localized tenderness, guarding, or muscle spasm. There were no additional factors contributing to disability. Muscle strength was normal and there was no atrophy. Left lower extremity reflexes and sensory examination were normal. A straight leg raising test was negative for the left leg. The Veteran did not report any radicular symptoms in her left lower extremity. There was no ankylosis. There were no other neurologic abnormalities. The Veteran did not have IVDS and did not report using any assistive devices. The clinician found that the Veteran's thoracolumbar strain would have an effect on her ability to work because lifting was limited to five pounds and bending was impaired during flare ups. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, her thoracolumbar strain warrants a rating of 40 percent on and after August 12, 2004. The first VA examination during the period on appeal that was valid for rating purposes was the June 24, 2011 examination that formed the basis for the later 40 percent rating because forward flexion was limited to 30 degrees. The Board therefore finds that it is at least as likely as not that the Veteran's low back disability was manifested by forward flexion limited to 30 degrees from August 12, 2004 to June 24, 2011. However, the preponderance of the evidence described above does not show that the Veteran's low back disability warrants a rating in excess of 40 percent during the period on appeal. No examiner or treatment provider has found ankylosis and, given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has symptoms analogous to ankylosis of the thoracolumbar spine as defined above. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 92 (33rd ed. 2020). Additionally, the 50 percent criteria require unfavorable ankylosis, which is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." 38 C.F.R. § 4.71a. None of these symptoms have been present during the appeal period. The Board has additionally considered whether a higher rating is warranted under the IVDS Formula based on incapacitating episodes. There is no evidence of a diagnosis of IVDS or of incapacitating episodes having a duration of at least six weeks in twelve months during the period on appeal. For this reason, a rating in excess of 40 percent based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. The Board has considered the Veteran's lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing in those statements is inconsistent with the 40 percent rating currently assigned. Any associated objective neurologic abnormalities caused by the Veteran's low back disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). The Veteran's radiculopathy of the right lower extremity is separately service connected and described in further detail below. There is no other probative medical or lay evidence of neurologic abnormalities caused by the Veteran's low back disability. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the 40 percent criteria for the period on appeal. 38 C.F.R. § 4.7. 2. Radiculopathy of the Right Lower Extremity As a result of the July 2021 VA examination in connection with this appeal, VA has separately granted service connection for the Veteran's radiculopathy of the right lower extremity. It is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve, with a 10 percent rating on and after July 13, 2021, the date of the most recent VA examination. Because the General Formula specifies that any associated objective neurologic abnormalities caused by the Veteran's low back disability are to be evaluated separately under an appropriate Diagnostic Code, the Board finds that it must consider the Veteran's radiculopathy for the same period as was under consideration for the lumbar spine disability, i.e., the period on and after August 12, 2004. See 38 C.F.R. § 4.71a at Note (1); Chavis v. McDonough, 34 Vet. App. 1 (2021). 38 C.F.R. § 4.124a, Diagnostic Code 8520 pertains to paralysis of the sciatic nerve. Under Diagnostic Code 8520, paralysis of the sciatic nerve is rated as follows: complete paralysis (80 percent); severe incomplete paralysis with marked muscular atrophy (60 percent); moderately severe incomplete paralysis (40 percent); moderate incomplete paralysis (20 percent); and mild incomplete paralysis (10 percent). When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In a December 2004 statement, the Veteran reported intermittent numbness of her right leg and foot. In a May 2006 statement, the Veteran again reported leg numbness. The Veteran was afforded a VA general medical examination in June 2011. As stated above, she reported paresthesia, leg weakness, and pain traveling down her legs to her feet. She characterized the pain as severe but, on examination, there was no evidence of radiating pain on movement. Motor function of the lower extremities was within normal limits. Sensory examination was intact on the right and reflexes were normal. During the January 2021 hearing, the Veteran testified that she had shooting pain in her right leg approximately twice a month. The Veteran was afforded a VA examination for peripheral nerves conditions in February 2021. As stated above, the Veteran reported onset of tingling and numbness in both feet in 2016 after beginning chemotherapy and the disability that created a need for chemotherapy is not service-connected. The clinician found no objective evidence of lower extremity peripheral neuropathy but noted the Veteran's report of mild intermittent pain and moderate paresthesias and/or dysesthesias and numbness. The Veteran was afforded a VA examination for back conditions on July 13, 2021. The clinician diagnosed sciatica of the right lower extremity. On examination of the right lower extremity, muscle strength was normal and there was no muscle atrophy. Reflexes were normal. Sensory examination was normal. A straight leg raising test was positive. There was moderate intermittent pain and paresthesias and/or dysesthesias, but no constant pain or numbness. The examiner found involvement of the right sciatic nerve due to her lumbar pathology but did not quantify its overall severity. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, her right lower extremity radiculopathy was present and warrants a rating of 20 percent on and after August 12, 2004. She has consistently reported right leg symptoms since 2004. The July 2021 VA examiner did not quantify the overall severity of her radiculopathy but characterized her symptoms as moderate. The Board therefore finds that it is at least as likely as not that the Veteran's low back disability was manifested by right lower extremity radiculopathy of moderate severity throughout the period on appeal. The preponderance of the evidence described above also shows that the Veteran's right lower extremity radiculopathy does not warrant a rating in excess of 20 percent during the period on appeal. Strength and reflexes were normal in the June 2011 and July 2021 examination reports and there were no sensory deficits. This is collectively indicative of incomplete paralysis of no more than moderate severity. The Board has considered the Veteran's lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her right lower extremity radiculopathy. See Jandreau, 492 F.3d at 1376-77. Nothing in those statements is consistent with a finding of more than moderate incomplete paralysis, other than her characterization of her leg pain as severe at the time of the June 2011 VA examination. The Board finds that the probative value of that report is outweighed by examination findings of no evidence of radiating pain on movement. The Board also notes that the July 2021 VA examiner considered the Veteran's lay reports in characterizing the level of intermittent pain and paresthesias and/or dysesthesias as moderate. The Board has considered the other Diagnostic Codes that apply to impairment of nerves of the lower extremities, but none of these provide for a rating greater than 20 percent for moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530. 3. Cervical Strain The Veteran contends that her cervical spine disability warrants ratings in excess of those currently in effect. As stated above, it is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5237, with a 10 percent rating from August 12, 2004 to June 23, 2011 and a 20 percent rating on and after June 24, 2011. The full period of service connection is on appeal. In a December 2004 statement, the Veteran reported that her neck was tense and sore. In a May 2005 statement, the Veteran reported daily pain in her upper neck that she characterized as "very debilitating." She added that, due to pain, she was currently unable to move her head from side to side. The next day, she called a VA facility to report neck pain and inability to turn her head or lift her upper extremities. She agreed to seek emergency medical attention but the record does not reflect her having done so. The Veteran was afforded a VA general medical examination in July 2005. The clinician noted the Veteran's reports of pain, stiffness, burning, and numbness in her upper back, as well as her report of difficulty moving her neck, but did not conduct an orthopedic examination. The Board therefore finds that the July 2005 examination report is inadequate for rating purposes and of no probative value; it will play no role in the Board's analysis. The Veteran was afforded an additional VA general medical examination in June 2006. With regard to the functional impact of repetition over time, the clinician found that there was additional limitation of thoracolumbar function due to pain after repetitive use but made no attempt to quantify this limitation in terms of range of motion and provided no explanation for declining to do so. The United States Court of Appeals for Veterans Claims (Court) has held that there must be an adequate rationale for declining to provide an opinion with regard to the functional impact of flare ups or repetition over time. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board therefore finds that the June 2006 examination report is also inadequate for rating purposes and of no probative value; it will play no role in the Board's analysis. A June 2006 x-ray of the Veteran's cervical spine showed "slight straightening of the cervical lordosis attributed to muscle spasm." During an August 2007 private treatment appointment, the Veteran reported dysesthesias radiating along the lateral aspect of both arms as well as sensory loss within the distribution of the left ulnar nerve. Electromyography and a nerve conduction study found electrophysiologic evidence of a severe ulnar neuropathy consistent with her past left hand fractures but no electrophysiologic evidence of an acute cervical radiculopathy. In an August 2008 rating decision, VA granted service connection for ulnar neuropathy as secondary to her service-connected healed fractures at the base of her left fourth and fifth metacarpals. Because her left upper extremity neuropathy is already service-connected for reasons unrelated to her service-connected cervical strain, her left upper extremity neurological symptoms are not before the Board. In a March 2008 statement, the Veteran reported severe pain in her upper back. The Veteran has submitted a June 2010 medical opinion by a private physician. Although the focus of the opinion was on the issue of service connection, the physician noted the Veteran's report of "continuing back pain and neck pain only partially controlled with pain medication, which frequently limits her ability to drive or work, and an examination in the office reveals limited range of motion and tenderness with repetitive use of the cervical and thoracic spine." The physician did not quantify this limitation of range of motion. The Veteran was afforded an additional VA general medical examination on June 24, 2011. The Veteran reported limitation in walking because of her spine condition. She also reported that she had not experienced falls due to her spine condition, but reported stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. She reported no bowel or bladder problems in relation to her spine condition. She reported constant pain in the shoulder blades, arms, neck, and head and characterized it as severe. She added that it could be exacerbated by physical activity and stress and that, during these flare ups, her symptoms were pain, weakness, incoordination, and limitation of motion. She did not report any incapacitation in the preceding 12 months. She reported functional impairment in the form of difficulty driving, typing, cooking, cleaning, and gardening. On examination, the Veteran's posture was normal and she did not require any assistive devices for ambulation. There was no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone, or atrophy of the limbs. There was no ankylosis. Cervical motion was reported as 30 degrees of forward flexion with onset of pain at 30 degrees, 20 degrees of extension with onset of pain at 20 degrees, 30 degrees of right and left lateral flexion with onset of pain at 30 degrees, and 45 degrees of right and left lateral rotation with onset of pain at 45 degrees. Ranges of motion were the same on repetition and there was no additional limitation of function after repetitive use. Sensory examination was intact in the right upper extremity and reflexes were normal in that extremity. IVDS of the cervical spine was not diagnosed "because the ulnar nerve related findings are due to cubital tunnel syndrome according to EMG studies from the medical records." Based primarily on this examination report, in an August 2011 rating decision, VA assigned a 20 percent rating on and after June 24, 2011. During the January 2021 hearing, the Veteran testified that her cervical spine symptoms contributed to numbness in her hands, that she had burning in her shoulders when typing for long periods, and that her posture affected her concentration. The Veteran was afforded a VA examination for peripheral nerves conditions in February 2021. The clinician diagnosed neuropathy of bilateral upper extremities and provided no opinion as to its etiology but noted that the Veteran reported onset of tingling and numbness in both hands in 2016 after beginning chemotherapy. The disability that created a need for chemotherapy is not service-connected. The Veteran was afforded a VA examination for neck conditions in July 2021. The Veteran reported left shoulder blade stiffness, inability to turn her head, burning, and sharp pain. She reported functional impact in the form of limitation in her ability to type, lift, turn her head driving (15 days a month), do laundry, mop floors, lift items, and sometimes to brush her teeth. She reported flare ups two times a month and characterized them as severe. She added that they lasted four to five days at a time but that she had had them last months and they were precipitated by overexertion and stress. She reported a constant limited radius to turn her head without pain. On examination, cervical motion was reported as 45 degrees of forward flexion with onset of pain at an unspecified degree, 20 degrees of extension with onset of pain at 20 degrees, 20 degrees of right lateral flexion with onset of pain at 15 degrees, 30 degrees of left lateral flexion with onset of pain at 20 degrees, and 45 degrees of right and left lateral rotation with onset of pain at 10 degrees. Passive range of motion testing was not performed because the Veteran was not able to tolerate passive manipulation of her spine. There was evidence of pain on active motion with weight bearing, but it did not result in functional loss. There was no objective evidence of crepitus, localized tenderness, or pain on palpation. Repetitive motion could not be tested because active range of movement provoked pain. The examination did not take place immediately after repetition over time, but the clinician found that pain and lack of endurance would significantly limit functional ability under those circumstances. The clinician found that, under these circumstances, forward flexion would be further limited to 40 degrees, extension and right lateral flexion would be limited to 10 degrees, left lateral flexion would be limited to 20 degrees, and right and left lateral rotation would be limited to 40 degrees. The examination did not take place during a flare up, but the clinician found that pain, fatigability, weakness, and lack of endurance would significantly limit functional ability under those circumstances. The clinician found that, under these circumstances, forward flexion would be further limited to 30 degrees, extension and right lateral flexion would be limited to 5 degrees, left lateral flexion would be limited to 10 degrees, and right and left lateral rotation would be limited to 20 degrees. There was no localized tenderness, guarding, or muscle spasm. There were no additional factors contributing to disability. Muscle strength was normal. There was muscle atrophy, but the clinician clarified that this was due to the Veteran's left ulnar neuropathy. Right upper extremity reflexes and sensory examination were normal. The Veteran did not report any radicular symptoms in her right upper extremity. There was no ankylosis. There were no other neurologic abnormalities. The Veteran did not have IVDS and did not report using any assistive devices. The clinician found that the Veteran's cervical strain would have an effect on her ability to work because pain would decrease her endurance. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, her cervical strain warrants a rating of 20 percent on and after August 12, 2004. The first VA examination during the period on appeal that was valid for rating purposes was the June 24, 2011 examination that formed the basis for the later 20 percent rating because forward flexion was limited to 30 degrees. In addition, a June 2006 x-ray noted straightening of the cervical lordosis attributable to muscle spasm. The Board therefore finds that it is at least as likely as not that the Veteran's cervical spine disability was manifested by forward flexion limited to 30 degrees and muscle spasm severe enough to result in an abnormal spinal contour from August 12, 2004 to June 24, 2011. However, the preponderance of the evidence described above does not show that the Veteran's cervical spine disability warrants a rating in excess of 20 percent during the period on appeal. No examiner or treatment provider has found forward flexion limited to 15 degrees or less or ankylosis and, given the existence of a range of cervical motion, the preponderance of the evidence is against a finding that the Veteran has symptoms analogous to ankylosis of the cervical spine as defined above. The Board has additionally considered whether a higher rating is warranted under the IVDS Formula based on incapacitating episodes. There is no evidence of a diagnosis of IVDS or of incapacitating episodes having a duration of at least four weeks in twelve months during the period on appeal. For this reason, a rating in excess of 20 percent based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. The Board has considered the Veteran's lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing in those statements is inconsistent with the 20 percent rating currently assigned. Any associated objective neurologic abnormalities caused by the Veteran's cervical spine disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). There is no probative medical or lay evidence of neurologic abnormalities caused by the Veteran's cervical spine disability. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the 20 percent criteria for the period on appeal. 38 C.F.R. § 4.7. 4. TDIU Earlier Effective Date A TDIU has already been granted on and after May 25, 2008 but, as the Board found in its March 2021 decision, the issue of entitlement to a TDIU prior to May 25, 2008 remains on appeal as a part of the claims for increased ratings for the Veteran's cervical and thoracolumbar strain. Given the periods on appeal for those disabilities, the Board will consider entitlement to a TDIU from August 12, 2004 to May 24, 2008. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's combined disability rating from August 12, 2004 to August 5, 2007, after the increased ratings granted above, is 80 percent: her thoracolumbar strain is rated 40 percent disabling, her healed fractures of the base of the left fourth and fifth metacarpals are rated 20 percent disabling, her cervical strain is rated 20 percent disabling, her radiculopathy of the right lower extremity is rated 20 percent disabling, her right hip dislocation injury is rated 10 percent disabling, her chondromalacia of the left knee is rated 10 percent disabling, her limitation of left wrist motion is rated 10 percent disabling, her chronic right ankle strain is rated 10 percent disabling, and her residuals of a spider bite and multiple small scars over the mid thoracic and lumbar spine have noncompensable ratings. 38 C.F.R. § 4.25 (2021). As of August 6, 2007, her left ulnar neuropathy is service-connected with a 20 percent rating, which did not increase her combined disability rating. Id. As of March 12, 2008, her rating for healed fractures of the base of the left fourth and fifth metacarpals is increased to 30 percent disabling and her rating for her right hip dislocation injury is increased to 20 percent disabling, which increased her combined rating to 90 percent. Id. The criteria for consideration of a schedular TDIU during this period are therefore met. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. The Board has discussed the evidence regarding occupational impairment caused by the Veteran's cervical and thoracolumbar spine disabilities in the context of the increased rating claims above. During the January 2021 hearing, the Veteran testified that her neck and hand symptoms had rendered her unable to manipulate tools or lift a toolbox, precluding her former employment as a mechanic. She added that she went to work as a loan officer but found herself also unable to fulfill the duties of that job because she struggled with sitting for long periods and typing. She added that her only other occupational experience was in food service and that, during this period, she was attempting to go to school but was not a full-time student. The Board finds that the Veteran's multiple service-connected orthopedic disabilities, as well as her left ulnar neuropathy and its reported impact on her ability to type, are sufficient to preclude employment in any of the fields in which the Veteran has reported that she has experience. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities rendered her unemployable under the applicable regulations from August 12, 2004 to May 24, 2008. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted during that period. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.