Citation Nr: 21006296 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 06-17 808 DATE: February 3, 2021 ORDER Entitlement to an increased disability evaluation in excess of 20 percent prior to February 11, 2010 and in excess of 20 percent from April 1, 2010 for thoracolumbar-spine disorder is denied. Entitlement to an initial disability evaluation in excess of 10 percent prior to March 9, 2020 and an increased evaluation in excess 20 percent thereafter for right-lower-extremity radiculopathy is denied. Entitlement to an initial disability evaluation in excess of 10 percent prior to March 9, 2020 and an increased evaluation in excess 20 percent thereafter for left-lower-extremity radiculopathy is denied. Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is denied. FINDINGS OF FACT 1. The objective medical evidence shows at no time during the relevant stages of the appeal period did lumbar-spine disorder more closely approximate forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 2. The objective medical evidence shows at no time during the appeal period prior to March 9, 2020 did right-lower-extremity more closely approximate incomplete paralysis higher than a mild level, or thereafter incomplete paralysis higher than a moderate level. 3. The objective medical evidence shows at no time during the appeal period prior to March 9, 2020 did left-lower-extremity more closely approximate incomplete paralysis higher than a mild level, or thereafter incomplete paralysis higher than a moderate level. 4. The evidence of record shows the Veteran’s service-connected disorders alone have not rendered it impossible for him or an average person to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased disability evaluation in excess of 20 percent prior to February 11, 2010 and in excess of 20 percent from April 1, 2010 for thoracolumbar-spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for an initial disability evaluation in excess of 10 percent prior to March 9, 2020 and an increased evaluation in excess 20 percent thereafter for right-lower-extremity radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2019). 3. The criteria for an initial disability evaluation in excess of 10 percent prior to March 9, 2020 and an increased evaluation in excess 20 percent thereafter for left-lower-extremity radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2019). 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1965 to October 1967. The radiculopathy ratings at issue in this appeal concern impairment of the sciatic nerve. Service connection has separately been granted for femoral nerve involvement and external cutaneous nerve involvement of the lower extremities. There has been no disagreement with the ratings assigned to those nerves and they are not at issue herein. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to an increased disability evaluation in excess of 20 percent prior to February 11, 2010 and in excess of 20 percent from April 1, 2010 for thoracolumbar-spine disorder. As points of clarification, the Board first notes the following from its review of the record. With the receipt by VA of the Veteran’s Notice of Disagreement (NOD) on June 15, 2005, the Veteran initiated the appeal of the ratings assigned upon the grants of service connection for lumbar-spine disorder and thoracic-spine disorder. The August 2010 rating decision noted that, due to changes in the regulations made effective in September 2003 under which criteria for rating diseases and injuries of the spine are applied, it was now required that the spine segments of thoracic and lumbar be combined as one. Those criteria are set forth below. The Veteran had previously been informed of this change in a January 2005 rating decision, addressing service connection for those claims. In short, the Veteran’s claims for those separate disorders were now to be treated as a single claim for thoracolumbar-spine disorder. The August 2010 rating decision then increased the evaluation for the now “combined” disorder to 20 percent. Additionally, a June 2012 rating decision granted a temporary total evaluation for convalescence for service-connected thoracolumbar-spine disorder from February 11, 2010 through March 31, 2010. Therefore, the claim for an increased evaluation is moot for that period, the Board will not address that part of the record which falls within those dates and the issue, as it appears above, has been so characterized. Thoracolumbar-spine disorder is evaluated under Diagnostic Code 5237, which in turn defers to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), under which a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Note (2) of the General Rating Formula provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of motion 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. VA regulations also direct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2017) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2017). DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 (2018) but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Although Note 4 of the General Rating Formula offers the choice of alternatively rating lumbar spine disorder under the Formula for Rating Intervertebral Disc Syndrome for whichever criteria of the two rating formulae provides a higher evaluation, the latter rating formula must be based on incapacitating episodes in the last 12 months, defined as a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Turning to the record, as stated above, the appeal period commenced on June 15, 2005. The Board will consider evidence starting in the period of a year prior to that date. The October 2008 VA examination for spine showed the Veteran’s thoracic spine without muscle spasm. Active and passive range of motion was recorded at 0-125 degrees, though it is not stated to what range of motion maneuver this refers or whether it represents any combination of ranges of motion. The diagnosis included degenerative disc disease, thoracic spine. In a December 2009 VA pain medicine consult, lumbosacral forward flexion was at 30 percent, with pain through the whole range. In February 2010, the Veteran underwent surgery at VA for laminectomies at 2 vertebrae levels of the lumbar spine. February and April 2010 VA neurosurgery notes state “[f]lexion of the low back as possible to about ¾ of normal with pain in the back and down both legs. Gait is altered by pain, and, in particular, he was unable to walk on heel because of the pain, but could walk on tiptoe.” The Board notes that, as normal forward flexion of the thoracolumbar spine is 90 degrees, “¾ of normal” would be approximately 66-to-68 degrees. In December 2010 and September 2011 visits, forward flexion was now stated as being 2/3 normal (at 60 degrees), with back pain. However, it was also found that the Veteran’s gait was not myelopathic (related to a spine injury or disease), he was able to walk on tiptoe, but complained of heel pain when walking on his heels. The treatment provider observed, “Lumbar stenosis seems less than before.” In the March 2020 VA examination for thoracolumbar spine, the VA examiner stated a 2010 diagnosis of degenerative arthritis of the spine, a 2009 diagnosis of intervertebral disc syndrome (IVDS) and a 2009 diagnosis of spinal stenosis. Range of motion measurements for forward flexion were 5 to 75 degrees (90 degrees, normal) and 5 to 10 degrees for extension (30 degrees, normal). With repeated use over time, the March 2020 VA examiner found forward flexion was 5 to 60 degrees and extension was 5 to 5 degrees. Although her range of motion testing was not conducted during a flare-up, she estimated the reduced motion for forward flexion as 54 to 50 degrees and for extension as 5 to 5 degrees. She found there was no ankylosis of the spine. Although the March 2020 VA examiner found the Veteran has IVDS, she further found there had not been any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months As already set forth above, the criteria for ratings higher than 20 percent under the General Rating Formula require forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine for a 40 percent rating. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. The above findings on examination in the relevant stages in the appeal period do not show forward flexion less than 50 degrees, to include as estimated during flare-ups, there are no findings of ankylosis of the spine of any sort, nor is there a finding of physician-ordered bed rest and treatment for the Veteran’s IVDS. While a December 2009 pain clinic finding was of 30 degrees flexion, that number is not nearly approximated before or after that finding, and it is not clear how that finding was determined. Thus, it does not provide a basis for a change in rating at that time or thereafter. The Board has carefully considered the lay statements of the Veteran and his wife, as they appear in the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The descriptions of the Veteran’s history of low and middle-back disorders and his current symptoms of what appears to be near-constant pain are detailed, but they do not provide precise medical findings. Consequently, the Board ascribes greater probative weight to the overall medical findings, including those of the March 2020 VA examiner, who conducted an in-person examination of the Veteran, she displayed a thorough knowledge of the Veteran’s medical history and her findings exhibit the competence of a medical professional. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Without findings set forth in the General Rating Formula as discussed above, the Veteran cannot attain higher disability evaluations. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for a disability evaluation in excess of 20 percent at either relevant stage in the appeal period. 2. Entitlement to an initial disability evaluation in excess of 10 percent prior to March 9, 2020 and an increased evaluation in excess 20 percent thereafter for right-lower-extremity radiculopathy is denied. 3. Entitlement to an initial disability evaluation in excess of 10 percent prior to March 9, 2020 and an increased evaluation in excess 20 percent thereafter for left-lower-extremity radiculopathy is denied. The August 2010 rating decision granted service connection for the above radiculopathies at 10 percent each, effective March 24, 2010. An August 2020 rating decision increased the ratings to 20 percent, effective March 9, 2020. The radiculopathies of the sciatic nerve are rated under Diagnostic Code 8520, which provides that moderate incomplete paralysis will be assigned a 20 percent disability evaluation, moderately severe incomplete paralysis warrants a 40 percent evaluation and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. A 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a , Diagnostic Code 8520. An April 2009 electromyogram (EMG) showed the following: “Normal examination. There is no electrodiagnostic evidence of a radiculopathy, plexopathy or mononeuropathy in the right upper or lower extremity. There is no evidence of a left lower extremity radiculopathy.” A December 2009 EMG showed mild chronic bilateral L4 to L5 polyradiculopathies with ongoing denervation with a mild axonal sensory peripheral neuropathy, primarily involving the upper extremities. As stated above, in February 2010, the Veteran underwent decompressive L4-L5 laminectomies at VA. His reports were noted of intermittent pain and numbness in his bilateral lower extremities. He identified the pain as localized to the posterior thigh and posterior calf; it was triggered by walking for extended periods of time and by prolonged sitting; the pain was alleviated with 10 to 15 minutes of rest; and no other palliative or exacerbating factors were identified. On examination on the day of discharge, the treatment provider found 5/5 strength throughout both lower extremities, with “[s]ensation to light touch is diminished circumferentially in the right foot as well as the lateral and posterior calf of the right lower extremity.” Straight leg raising on the left caused some pain down the left leg but, with no clear indications of pain in the right leg. As also stated in the preceding section, the VA neurosurgery note later in February 2010 noted the Veteran’s complaints of pain down both legs and summed up the findings of previous testing as “[a]n EMG of the legs and of the right arm, in April of 2009, is reported as negative. An EMG in December 2009, is reported as showing mild bilateral L4 and L5 changes in the form of chronic mild axonal changes, and mild sensory neuropathy.” In May 2010, during a VA physical therapy evaluation, the Veteran reported that before the lumbar laminectomies, his right-lower extremity had been numb and now afterward both lower extremities were numb. A VA neurology outpatient note in September 2010 noted that April 2009 EMG findings of radiculopathy and, although the Veteran reported diffuse painful paresthesias and dysesthesia since 1997 and an MRI was ordered to investigate radicular symptoms, the treatment provider noted the Veteran’s “examination was not consistent with this” and with no evidence of polyradiculopathy or neuropathy on EMG or examination, surgical intervention was deemed unnecessary. The diagnostic impression stated the etiology of the symptoms remains unclear, even after extensive workup previously. In a December 2010 VA neurosurgery note, the Veteran again complained of numbness and tingling in all limbs. Although the October 2019 Appellate Brief asserts there has been no EMG (electromyogram) since December 2009, the record shows a February 2012 EMG at VA of the right-lower extremity, as well as right-upper extremity, indicating “[n]ormal examination. There is no electrodiagnostic evidence of a peripheral neuropathy.” A November 2013 VA treatment note states neurological EMG testing was negative in the lower extremities, as well as upper extremities. A VA treatment note in August 2014 noted neuromuscular results of no gross focal deficits and normal gait. An April 2016 VA primary care note shows neurological testing indicated “motor 5/5.” In a July 2017 VA emergency department note, a brief neurological examination revealed normal “motor and soft touch all ext[remities].” The findings for radiculopathy in the March 2020 VA examination for thoracolumbar spine show, although the Veteran has radicular pain due to radiculopathy, he does not have constant pain in the right and left-lower extremities. The March 2020 VA examiner further found intermittent pain, numbness and tingling in those extremities are at a mild level of severity. The Veteran was also afforded a March 2020 VA examination for peripheral nerves conditions, in which the March 2020 VA examiner stated a 1998 diagnosis of polyradiculopathy. Her findings are identical to those from the spine examination. Additionally, she found all nerves affected showed incomplete paralysis at a mild level for both extremities. She further found the EMG studies had been performed in October 2010 on both extremities, showing normal results. As set forth above, Diagnostic Code 8520 requires a finding of moderately severe incomplete paralysis for a 40 percent evaluation and “[s]evere, with marked muscular atrophy, incomplete paralysis” for a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. None of these findings were made in either the March 2020 spine examination or the March 2020 peripheral nerves examination. Moreover, the record does not offer medical evidence after March 9, 2020 establishing radiculopathy at more than a moderate level of severity, under the rating criteria of Diagnostic Code 8520. The Board has once again considered the lay statements of the Veteran and his wife, but concludes that the findings on two examinations are more probative for purposes of adjudication in regard to the rating criteria of Diagnostic Code 8520. Therefore, for these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the two claims for disability evaluations in excess of 10 percent prior to March 9, 2020 and in excess of 20 percent thereafter. 4. Entitlement to TDIU. A finding of TDIU is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by non-service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record must reflect that circumstances, apart from non-service-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in considering his or her service-connected disabilities, can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The combined rating is achieved by “adding” the disability ratings together. However, this is not a conventional addition of numerical values. The efficiency of the individual for employment purposes is not reflected as a numerical value equivalent to the assigned disability rating; in terms of actual efficiency, the number will be lessened under the regulation. However, VA recognizes that earning capacity is affected exponentially as a less severe service-connected disability is added to the most severe service-connected disability, thereby reflecting the ever-diminishing efficiency of the individual. See 38 C.F.R. § 4.25. The United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the VA Regional Office. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran is service-connected for thoracolumbar-spine disorder at 20 percent, right-lower-extremity polyradiculopathy at 20 percent, left-lower-extremity polyradiculopathy at 20 percent, major depressive disorder at 50 percent, cervical-spine disorder at 20 percent, right-lower-extremity radiculopathy (femoral nerve) at 10 percent, left-lower-extremity radiculopathy (femoral nerve) at 10 percent, with posterior scar, skin disorder, right-lower-extremity radiculopathy (cutaneous nerve), and left-lower-extremity radiculopathy (cutaneous nerve), each at noncompensable disability evaluations. Combined, the Veteran’s ratings for his service-connected disabilities are at 90 percent. Overall, the Veteran’s combined rating satisfies the regulatory threshold of a combined rating of 70 percent in order for the Board then to proceed with a further assessment of the availability of a TDIU. 38 C.F.R. § 4.16 (a). The Board must still determine from the medical record whether the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. However, the record does not contain an Application for Increased Compensation based on Individual Unemployability (VA Form 21-8940). The Board notes here that an August 2019 rating decision found the Veteran not competent and he was properly informed by an October 2019 notification letter. Moreover, the Veteran’s brother-in-law, R.M.O., submitted a statement in October 2019, informing the Board that the Veteran is suffering from cognitive impairment and may have forgotten AOJ requests to file paperwork associated with this appeal. In recognizing the Veteran’s difficulties, when the Board remanded the claims for thoracolumbar-spine disorder and the radiculopathies in December 2019, to include the claim for TDIU as inextricably intertwined with those claims, it took the opportunity to impress upon the Veteran and “especially his representative (emphasis in original)” that the Veteran must be assisted in preparing and submitted a Form 8940, as it “is essential evidence for this claim, as it will apprise the Board of, among other things, the Veteran’s employment history, the reasons why he is unemployable and the dates he was affected to that extent.” Absent a completed Form 21-8940, the Board cannot be sure of the circumstances surrounding Veteran’s employment status and, in the past, the Board has consistently denied claims for TDIU on that basis. However, the record gives some indication which can assist the Board, such as a VA psychiatry note in June 2008 noted the Veteran’s report that he retired from employment in a forced medical retirement in 2000 from his position as an electrical engineer, due to his use of prescribed controlled substances, reported by him in the October 2008 VA examination as being for joint pain, which in turn prohibited driving on the job. The Board therefore has proceeded on the basis there may be sufficient evidence to adjudicate this claim absent the submission of VA Form 21-8940. As TDIU is considered the logical progress or extension of any increased rating claim on appeal, it therefore shares the same appeal period with the claim for a higher evaluation for thoracolumbar-spine disorder. Turning to the record, the summary of the record for thoracolumbar-spine disorder and the radiculopathies have been set forth above and in regard to the latter, the findings are the same for the other radiculopathy claims for whichever nerves are afflicted, as the Veteran has separate radiculopathy ratings accordingly by specific nerve involvement. The remaining claims evaluated with a compensable rating are cervical-spine disorder and major depressive disorder. Cervical-spine disorder is rated under Diagnostic Code 5237, which defers to the General Rating Formula, which, as pertaining to the cervical spine, provides a 20 percent disability rating 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. A 30 percent disability rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2019). Note (2) to the General Rating Formula states normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The October 2008 VA examination for spine shows, on physical examination, forward flexion of the cervical spine at 15 degrees and extension at 10 degrees, both maneuvers with the complaint of pain at the end of motion. X-rays revealed mild spondylosis involving the C3 – C5 vertebrae levels. The October 2008 VA examiner diagnosed cervical spondylosis, with no neurological deficiency. He further noted no additional limitation of motion due to pain, fatigue, weakness or lack of endurance on repetitive use, there is no history of acute episodes of incapacitating neck pain over the past 12 months and there is minimal impairment of daily occupational activities. An August 2009 VA treatment note shows an assessment of cervical spondylosis, multiple degenerative changes of the cervical spine, the disc bulge worse at C3-C4, C7-T1 has early spondylosis and C6-C7 show disc bulge. The Veteran’s major depressive disorder is rated under Diagnostic Code 9434. However, most psychiatric disorders, including major depressive disorder, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which provides a 50 percent evaluation requires demonstrated evidence of occupational and social impairment, with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating will be assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. June 2010 through April 2011 VA psychiatry notes show diagnostic impressions of major depressive disorder, without psychotic features. Mental status examinations were overall normal or unremarkable, showing moods ranging from dysphoric to euthymic and no suicidal ideations. In the May 2011 VA examination for mental disorders, the mental status examination showed overall normal or unremarkable findings, with the exception of a dysphoric mood, sleep impairment, intermittent bad dreams, the inability to do serial 7s and backward spelling, and persisting suicidal ideation, of which the Veteran denied intention. Structured testing relationship revealed the Veteran’s preoccupation with pain and worsening physical disorders. The May 2011 VA examiner diagnosed major depressive disorder and alcohol dependence in partial remission, with a Global Assessment of Functioning (GAF) score of 60, devised by the American Psychiatric Association, indicating moderate symptoms, such as flat affect and circumlocutory speech, occasional panic attacks or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The May 2011 VA examiner found occupational and social impairment, with reduced reliability and productivity, due to mental disorder symptoms. Regarding functional impact, he concluded the Veteran is very limited in the range and scope of activities in which he can engage and which he can enjoy, which has impacted the quality of his life. June 2011 through April 2012 VA psychiatric notes show mental status examination findings to be normal or unremarkable, with the exception of difficulty in concentration reported in June 2011 and February 2012. An October 2014 VA psychiatric note shows mental status examination findings normal or unremarkable, with the exception of difficulty in concentration. May 2015 through March 2017 VA psychiatry notes show mental status examination findings overall as normal, with an “okay,” “lousy,” “up and down,” “off and on,” or “not good” mood and a restricted or dysthymic affect. In September and October 2016, the Veteran reported occasional passive thoughts of being better off dead or not waking, but added he would not hurt himself as it would negatively impact his family. The summary of the record for service-connected for cervical-spine disorder does not show findings which reasonably would preclude securing or following a substantially gainful occupation. There are simply no findings indicating that the Veteran was or is incapacitated to a total occupational extent from his neck disorder. Service-connected major depressive disorder during the appeal period does not satisfy the rating criteria for a higher evaluation the General Rating Formula. In particular, the Veteran’s VA mental status examinations between June 2010 and March 2017 are remarkable only for their consistent findings indicating the ongoing stability of the Veteran’s disorder. They do not indicate the disordered thought processes, impaired communication, grossly inappropriate behavior, or hallucinations and delusions of higher evaluations. The few instances of suicidal ideation are widely intermittent, passive, without plan or intent, and appear to have been uttered more in frustration then as declarations. The Board briefly notes here the findings of December 2018 VA examination for housebound status or permanent need for regular aid and attendance (associated with the file in April 2019) show a diagnosis of mild cognitive impairment, as well as essential hypertension, fibromyalgia, post-traumatic stress disorder (PTSD), and a right-upper-extremity disorder, which is not legible. The VA examiner also found memory impairment. Based on this examination, the AOJ issued a June 2019 rating decision proposing incompetency. An August 2019 rating decision followed which found the Veteran is not competent to handle disbursement of funds. In an August 2020 VA examination for housebound status or permanent need for regular aid and attendance, the VA examiner found the disability which restricts activities and functions as “Dementia (advanced)[,] lots of pain,” further noting the Veteran cannot shave himself, his family must assist in administering medicines and there had been issuance of the June 2019 proposed incompetency letter by VA that the Veteran is not competent to manage his own finances. She further noted the Veteran’s posture as slumped over, he exhibited tremors in his hands, he walks with a cane due to his thoracolumbar-spine disorder and his cervical and lumbar range of motion is slow due to surgical fusion. His memory loss is moderate and his balance is “shaky.” The foregoing findings indicate further mental deterioration, although memory loss is described as only “moderate.” However, the Veteran has no service-connected disorder of dementia or associated with dementia. The VA examiner’s further description of pain is not specific or directed at any particular service-connected disorder. In short, the Veteran appears disabled to a degree suggesting he cannot perform work-related tasks, due to senility and possibly other disorders. However, a TDIU claim cannot be granted based of the effects of non-service-connected disorders. Looking to the Veteran’s education, the May 2011 VA examiner for mental disorders noted the Veteran earned a Bachelor of Science degree in electrical engineering at the Detroit Institute of Engineering. Once again, the Board recognizes the Veteran’s current state of mental deterioration, but for the purposes of adjudication of the claim for TDIU, the Board must also note that the Veteran’s advanced education and, in the absence of a VA Form 8940, what seems to the Board to have been a predictably productive work history commensurate with his electrical engineering degree, in turn provided him during nearly all of the appeal period, and therefore before the onset of dementia, with readily transferable skills based on his education, training and professional experience for sedentary work, if his physical disorders otherwise were to prevent his usual employment. However, the record also shows that the Veteran at no time during the appeal period appears to have taken advantage of VA’s vocational rehabilitation program, designed to leverage the very background and skills discussed above. After considering the totality of the record, the Board finds the preponderance of the evidence reflects that the Veteran’s service-connected disabilities alone do not preclude him or an average person from securing and following a substantially gainful occupation. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate 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.