Citation Nr: 21010125 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-21 151 DATE: February 24, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for the service-connected right knee degenerative joint disease (claimed as right knee disability) is denied. Entitlement to an evaluation in excess of 10 percent for the service-connected left knee degenerative joint disease (claimed as left knee disability) is denied. Entitlement to an evaluation in excess of 10 percent for service-connected cervical myositis and spasm (claimed as muscle spasm and posterior osteophyte projecting within the central canal C5-C6 by X-rays of the cervical back condition) for the period from February 26, 2009 through June 12, 2013 is denied. Entitlement to an evaluation in excess of 20 percent for service-connected cervical myositis and spasm (claimed as muscle spasm and posterior osteophyte projecting within the central canal C5-C6 by X-rays of the cervical back condition) for the period from June 13, 2013 through March 11, 2014 is denied. Entitlement to an evaluation of 30 percent for service-connected cervical myositis and spasm (claimed as muscle spasm and posterior osteophyte projecting within the central canal C5-C6 by X-rays of the cervical back condition) for the period from March 12, 2014 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 1, 2016 is denied. FINDINGS OF FACT 1. Throughout the period on appeal, extension of his right knee is not shown to be limited to 15 degrees or more and flexion has not shown to be limited to 30 degrees or less to include as due to pain. 2. Throughout the period on appeal, extension of his left knee is not shown to be limited to 15 degrees or more and flexion has not shown to be limited to 30 degrees or less to include as due to pain. 3. From February 26, 2009 through June 12, 2013, the Veteran’s cervical spine and neck condition was not manifest by limitations of forward flexion of 30 degrees or less; or combined range of motion of 170 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. . 4. From June 13, 2013 to March 11, 2014, the Veteran’s condition manifested as forward flexion of the cervical spine limited to greater than 15 degrees but not greater than 30 degrees. 5. The evidence is at least in equipoise that from March 12, 2014 the Veteran’s condition manifested as forward flexion of the cervical spine limited to less than 15 degrees. 6. Prior to December 1, 2016, the preponderance of evidence does not support that the Veteran was rendered unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. From February 26, 2009 through June 12, 2013, the criteria for a rating in excess of 10 percent for cervical myositis and spasm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 4. From June 13, 2013 to March 11, 2014, the criteria for a rating in excess of 20 percent for cervical myositis and spasm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 5. From March 12, 2014, the criteria for a 30 percent rating for cervical myositis and spasm have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 6. The criteria for the award of a TDIU prior to December 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1974 to December 1975. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a video conference hearing at the San Juan, Puerto Rico RO, before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. It should be noted that the Veteran is presently rated as totally disabled based on individual unemployability (TDIU) due to his combined service-connected disabilities, effective December 1, 2016. The Board’s decision will therefore address whether the instant increased rating claims impact the effective date of TDIU. Increased Ratings 1. Entitlement to an evaluation in excess of 10 percent disabling for the service-connected right knee degenerative joint disease (claimed as right knee disability) is denied. The Veteran seeks increased ratings for his service-connected bilateral knee disabilities. The Veteran’s right knee is currently evaluated at 10 percent disabling, effective February 26, 2009. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Disabilities of the knee joint, generally, are rated under diagnostic codes (DCs) 5256 through 5263. See 38 C.F.R. § 4.71a. In addition, there are special provisions for rating degenerative arthritis (to include osteoarthritis) under DC 5003. When there is painful motion of a major joint caused by degenerative arthritis that is detected on x-ray, such painful motion will be considered limited motion pursuant to 38 C.F.R. § 4.59. Painful motion is entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even if there is no actual limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Ankylosis is rated under DC 5256. DC 5257 provides for 10, 20, or 30 percent ratings for recurrent subluxation or lateral instability that is, respectively, slight, moderate or severe. Under DC 5258, a 20 percent evaluation is assigned for semilunar, dislocated cartilage with frequent episodes of “locking” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5260, a noncompensable evaluation is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Under DC 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Impairment of the tibia and fibula is rated under DC 5262 and genu recurvatum is rated under DC 5263. Generally, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. §§ 4.14. However, the United States Court of Appeals for Veterans Claims has held that evaluation of a knee disability under DCs 5257 or 5261 (and by code 5260) or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DCs 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). The Veteran underwent an in-person VA examination for his bilateral knees in March 2014. The examiner reviewed the claim file and confirmed the Veteran’s diagnosis of bilateral knee osteoarthritis. The Veteran reported constant bilateral knee crepitus and a sensation of locking pain, which was worse on cold or rainy days. The Veteran denied any sensation of his right knee giving away. The examiner documented the Veteran’s reports of flare-ups after prolonged standing or walking, which further limited his ability to walk or stand. The examiner measured the Veteran’s right knee flexion to 130 degrees, and extension to -5 degrees. Left knee flexion was 135 degrees, with extension to -5 degrees. The examiner did not observe objective evidence of painful motion on testing. After repetitive use over time, the examiner did not find any change of range of motion, or additional functional impairment. No pain was observed on palpation in either knee. Both knees demonstrated full muscular strength (5/5). Joint stability testing showed no evidence of knee instability in either knee in any direction. The examiner did not find evidence of any other symptoms. The examiner observed that the Veteran demonstrated a normal gait pattern without assistive devices on the day of his examination. See March 2014 Compensation and Pension (C&P) Examination. The Board affords this examination high probative value based on its thorough evaluation of the Veteran’s bilateral knee conditions. The Veteran underwent another in-person VA examination in April 2017. The examiner reviewed the Veteran’s claim file and confirmed the diagnosis of bilateral degenerative joint disease. The Veteran described increased pain in his knees when exposed to cold temperatures or inactivity. The Veteran complained of frequent crepitation and swelling, and occasional giving way of his knees, and reported the use of a one-point cane to assist with walking. The Veteran reported flare-ups due to cold temperatures. The examiner measured the Veteran’s right knee flexion from 5-120 degrees, and extension from 120-5 degrees. The examiner observed pain upon testing, but reported it did not result in additional functional loss. Left knee flexion was measured from 5-100 degrees, and extension from 100-5 degrees. The examiner wrote that after repetitive use testing, the Veteran did not demonstrate additional functional loss in either knee. The examiner wrote that the Veteran experienced increased functional limitation during flare-ups bilaterally, but the examiner did not provide an estimate in terms of range of motion because it would be speculative. The Veteran demonstrated full knee strength (5/5) bilaterally. No ankylosis was shown. Joint stability tests were conducted and did not show instability in either knee in any direction. No further symptoms were documented. The examiner wrote an opinion that the Veteran’s limitations of motion in his knees included difficulty rising from a seated position, and inability to carry objects weighing more than 10 pounds, walking on irregular surfaces, or climbing stairs or ladders. See April 2017 C&P Examination. The Board finds this examination to be probative insofar as the measurements and observations made that day. However, the Board is mindful that the report did not estimate the Veteran’s range of motion during flare-ups. In May 2019, the Veteran underwent another in-person VA examination for his knees. The examiner reviewed the claims file and confirmed diagnoses of bilateral degenerative joint disease of the knees. The Veteran reports pain in his knees which was worst after use over time. Pain could last up to 12 hours after onset, but pain medications provided some short-term relief. The examiner measured the Veteran’s right knee from 0-130 degrees flexion, and 130-0 degrees extension. The left knee was also measured at 0-130 degrees flexion, and 130-0 degrees extension. The examiner observed evidence of pain bilaterally with weight-bearing and palpation. The examiner estimated, based on the Veteran’s lay statements, that after repetitive use over time, the Veteran’s right and left knees could each be limited to 0-80 degrees flexion, and 80-0 degrees extension. No ankylosis was shown. Instability testing was conducted and showed no instability in either knee in any direction. No additional symptoms were documented. The examiner explained that his estimates for the Veteran’s limitations over time were based on the Veteran’s lay statements, and not based on objective measurements. See May 2019 C&P Examination. The Board affords this examination high probative value based on the thorough assessment of the Veteran’s condition, including estimates of limited range of motion upon repetitive use based on the Veteran’s lay statements. Generally, the Veteran has argued that his bilateral knee conditions have worsened throughout the period on appeal, resulting in increased pain which in turn causes increased functional limitation. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to diagnose his own medical condition. Nonetheless, the Board finds the Veteran’s lay statements to be credible, and highly probative as to his functional limitations due to pain. The Veteran’s regular medical treatment records show a long history of complaints of knee pain, which are also reflected in the VA examiners’ reports. See generally VA Medical Treatment Records. The Veteran’s right knee is evaluated under Diagnostic Code (DC) 5261 for limitations of extension of the knee. The preponderance of evidence does not support an evaluation in excess of 10 percent for the Veteran’s service-connected right knee disability. Throughout the period on appeal, the Veteran’s right knee disability has manifested by functional limitations due to pain. A higher evaluation is not appropriate under DC 5261, as the Veteran’s extension of his right knee is not shown to be limited to 15 degrees or more during any time on appeal. The Board has considered whether a higher evaluation may result under a different DC for knee disabilities. A higher evaluation would not result under DC 5260 for limitations of flexion, as the Veteran’s right knee has not shown to be limited to 30 degrees or less during any time on appeal. Evaluation under DC 5256 is inappropriate, as the record does not show ankylosis of the knee. Evaluation under DC 5257 is inappropriate, as the record does not show recurrent subluxation or lateral instability. Evaluation under DC 5258 is inappropriate, as the record does not show dislocated semilunar cartilage with locking pain and effusion. Evaluation under DC 5259 is inappropriate, as the evidence does not show removal of symptomatic semilunar cartilage. Evaluation under DC 5262 is inappropriate, as the record does not show that the Veteran experiences a tibia or fibula impairment. Evaluation under DC 5263 is inappropriate as the record does not show genu recurvatum. Accordingly, for the reasons above, the Board concludes that the present 10 percent evaluation, and no higher, for the Veteran’s right knee disability is appropriate, based on his functional limitations due to painful motion. As the preponderance of the evidence goes against the claim for an increased evaluation, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim for an increased rating is denied. 2. Entitlement to an evaluation in excess of 10 percent disabling for the service-connected left knee degenerative joint disease (claimed as left knee disability) is denied. As discussed above, the Veteran underwent examinations for his bilateral knee disabilities in March 2014, April 2017, and May 2019. Generally, the Veteran has argued that his bilateral knee conditions have worsened throughout the period on appeal, resulting in increased pain which in turn causes increased functional limitation. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to diagnose his own medical condition. Nonetheless, the Board finds the Veteran’s lay statements to be credible, and highly probative as to his functional limitations due to pain. The Veteran’s regular medical treatment records show a long history of complaints of knee pain, which are also reflected in the VA examiners’ reports. See generally VA Medical Treatment Records. The Veteran’s left knee is evaluated under Diagnostic Code (DC) 5261 for limitations of extension of the knee. The preponderance of evidence does not support an evaluation in excess of 10 percent for the Veteran’s service-connected left knee disability. Throughout the period on appeal, the Veteran’s left knee disability has manifested by functional limitations due to pain. A higher evaluation is not appropriate under DC 5261, as the Veteran’s extension of his left knee is not shown to be limited to 15 degrees or more during any time on appeal. The Board has considered whether a higher evaluation may result under a different DC for knee disabilities. A higher evaluation would not result under DC 5260 for limitations of flexion, as the Veteran’s left knee has not shown to be limited to 30 degrees or less during any time on appeal. Evaluation under DC 5256 is inappropriate, as the record does not show ankylosis of the knee. Evaluation under DC 5257 is inappropriate, as the record does not show recurrent subluxation or lateral instability. Evaluation under DC 5258 is inappropriate, as the record does not show dislocated semilunar cartilage with locking pain and effusion. Evaluation under DC 5259 is inappropriate, as the evidence does not show removal of symptomatic semilunar cartilage. Evaluation under DC 5262 is inappropriate, as the record does not show that the Veteran experiences a tibia or fibula impairment. Evaluation under DC 5263 is inappropriate as the record does not show genu recurvatum. Accordingly, for the reasons above, the Board concludes that the present 10 percent evaluation, and no higher, for the Veteran’s left knee disability is appropriate, based on his functional limitations due to painful motion. As the preponderance of the evidence goes against the claim for an increased evaluation, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim for an increased rating is denied. 3. Entitlement to an evaluation in excess of 10 percent disabling for service-connected cervical myositis and spasm (claimed as muscle spasm and posterior osteophyte projecting within the central canal C5-C6 by X-rays of the cervical back condition) for the period from February 26, 2009 through June 12, 2013 is denied. The Veteran has argued for an increased rating for his service-connected cervical myositis and neck spasm condition. The Veteran’s disability was previously evaluated in three stages: at 10 percent disabling from February 26, 2009 through June 12, 2013; and 20 percent disabling from June 13, 2013 through May 2, 2019; and at 30 percent disabling from May 3, 2019. For the reasons that follow, the Board concludes that a 30 percent evaluation should be assigned effective March 12, 2014. Increased evaluations for the stages prior to that date are not warranted by the evidence of record. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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 rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. The maximum evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. From February 26, 2009 to June 12, 2013, the Veteran’s cervical spine disability is evaluated at 10 percent disabling. Subsequent stages of the cervical spine disability will be addressed below. In May 2009, the Veteran underwent a VA examination for his neck. The examiner annotated the Veteran’s complaints of cervical pain and spasms. The Veteran expressed that his neck condition had gotten progressively worse over time. Range of motion testing showed flexion to 45 degrees, extension to 45 degrees, left lateral flexion to 45 degrees, left lateral rotation to 65 degrees, right lateral flexion to 45 degrees, and right lateral rotation to 65 degrees. The examiner observed objective evidence of pain on active motion. The examiner described cervical spasms and pain and tenderness. However, atrophy, guarding and weakness were not shown. The examiner wrote that the symptoms were not severe enough to be responsible for abnormal gait or spinal contour. After repetitive use over time, left lateral flexion was further limited to 25 degrees, left lateral rotation was limited to 50 degrees, right lateral flexion was limited to 25 degrees, and right lateral rotation was limited to 50 degrees. Ankylosis was not shown. No further limitations were annotated for forward flexion or extension. See May 2009 VA Examination. The Veteran’s regular medical records do not show an examination during this stage on appeal which includes range of motion measurements. However, the record generally shows complaints of cervical spine pain and functional limitations due to pain. The preponderance of evidence from February 26, 2009 through June 12, 2013 thus supports a finding that a higher evaluation is not warranted as the Veteran’s condition is not shown to manifest to limitations of forward flexion of 30 degrees or less; or combined range of motion of 170 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Accordingly, as the 10 percent evaluation is appropriate, the claim for an increased rating during this stage is denied. 4. Entitlement to an evaluation in excess of 20 percent disabling for service-connected cervical myositis and spasm (claimed as muscle spasm and posterior osteophyte projecting within the central canal C5-C6 by X-rays of the cervical back condition) for the period from June 13, 2013 through March 11, 2014 is denied. In June 2013, the Veteran underwent another VA examination for his neck. The examiner documented the Veteran’s complaints of soreness and stiffness which were exacerbated by prolonged sitting, standing up, and walking. The examiner recorded forward flexion to 20 degrees, extension to 40 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 40 degrees. The examiner documented pain during the examination, but the examiner notated that it did not result in additional limitations beyond the above measurements. IVDS and ankylosis were not shown. See June 2013 VA Examination. The Veteran’s regular medical records do not show an examination during this stage on appeal which includes range of motion measurements. However, the record generally shows complaints of cervical spine pain and functional limitations due to pain. The preponderance of evidence supports a finding that during this stage on appeal, the Veteran’s condition manifested as forward flexion of the cervical spine limited to greater than 15 degrees but not greater than 30 degrees. Accordingly, a 20 percent evaluation is warranted during this stage. A higher evaluation is not warranted as the Veteran’s condition is not shown to manifest to limitations of forward flexion of 15 degrees or less; or favorable ankylosis of the entire cervical spine. 5. Entitlement to an evaluation of 30 percent disabling for service-connected cervical myositis and spasm (claimed as muscle spasm and posterior osteophyte projecting within the central canal C5-C6 by X-rays of the cervical back condition) for the period from March 12, 2014 is granted. In March 2014, the Veteran underwent another VA examination for his neck. The examiner confirmed the previous diagnoses of degenerative disc disease of the cervical spine, which caused stabbing pain upon movement. The examiner measured forward flexion to 30 degrees, with painful motion beginning at 25 degrees; extension to 20 degrees with painful motion beginning at 15 degrees; right lateral flexion to 20 degrees with painful motion beginning at 15 degrees; left lateral flexion to 20 degrees with painful motion beginning at 15 degrees; right lateral rotation to 50 degrees with painful motion beginning at 40 degrees; and left lateral rotation to 50 degrees with painful motion beginning at 40 degrees. The examiner noted the Veteran had guarding of the cervical spine but which did not result in abnormal gait or spinal contour. Ankylosis was not shown. The examiner found evidence of IVDS of the cervical spine, but observed it did not result in any incapacitating episodes over the past 12 months. See March 2014 C&P Examination. In April 2017, the Veteran underwent another VA examination for his neck. The examiner reviewed the Veteran’s claim file, and confirmed the diagnosis of cervical myositis with degenerative joint disease. The Veteran described constant neck pain and stiffness which led to decreased ability and pain in turning his head to the sides. The Veteran related that the condition aggravated with cold temperatures and inactivity. Forward flexion was measured at 25 degrees, extension at 20 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 35 degrees, and left lateral rotation at 30 degrees. The examiner documented pain in all directions of movement. The examiner indicated that during flare-ups, the Veteran would experience additional pain and lack of endurance, but the examiner did not estimate the limitations of motion in terms of degrees. The examiner stated that the Veteran did not experience guarding or muscle spasms of the cervical spine. IVDS and ankylosis were not found. The examiner summarized that the Veteran’s limited range of motion and painful motion caused functional limitations in lifting, pushing, pulling, or carrying objects that weigh 10 pounds or more. The Board affords this examination high probative value based on the thorough documentation of the Veteran’s condition by the examiner. In May 2019, the Veteran underwent another VA examination for his neck disability. The examiner reviewed the Veteran’s claim file, and confirmed the diagnoses of cervical myositis and spasms. The Veteran described cervical pain daily, with occasional exacerbations after repetitive use which could last 24 hours. The examiner measured limitations of motion, with forward flexion limited to 20 degrees, extension limited to 15 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 15 degrees, right lateral rotation limited to 60 degrees, and left lateral rotation limited to 60 degrees. The examiner documented painful motion in all directions. Using the Veteran’s lay statements and a goniometer, the examiner estimated that after repeated use over time, the Veteran’s range of motion was further limited to forward flexion of 15 degrees, extension of 5 degrees, right lateral flexion of 5 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 20 degrees. The evidence is at least in equipoise that from March 12, 2014 the Veteran’s condition manifested as forward flexion limited to less than 15 degrees. The examination on that date in March 2014 showed that the Veteran’s forward flexion was limited to 15 degrees because of his neck pain. The subsequent April 2017 examination did not show such a restricted result; however, the examiner indicated the measurements taken at that time did not demonstrate the full extent of the Veteran’s functional limitations during his flare-ups. The examiner did not indicate that the Veteran’s condition had improved in any way since his previous examination. Moreover, the examination in May 2019 showed continued severe limitations of the Veteran’s movement. Therefore, the Board finds such examinations are consistent with the showing in the March 2014 examination that the Veteran’s forward flexion was limited to 15 degrees during flare-ups and after repeated use. The date of the examination is the appropriate start point of the stage, as it constitutes the first instance that such limitation was demonstrated in the record. Accordingly, for the reasons above, at 30 percent evaluation is warranted effective March 12, 2014. A higher evaluation is not appropriate as the evidence does not show unfavorable ankylosis of the entire cervical spine. From March 12, 2014, the claim for an increased 30 percent rating is granted. 6. Entitlement to an TDIU earlier than December 1, 2016 is denied. In his January 2017 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran asserted that he was unemployable due to his lumbar and cervical spine and mental disabilities. The Veteran is presently rated as TDIU effective December 1, 2016. As the Veteran’s cervical spine disabilities were addressed in this decision, the Board must therefore address the effective date of assignment of TDIU. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Therefore, when the AOJ fails to grant the benefit in full (i.e. entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved remains on appeal. Thus, the Board will address the issue of entitlement to an earlier effective date for TDIU, even though the Veteran has not expressly appealed that issue. A TDIU may be assigned when a disabled veteran, in the judgment of the rating agency, is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. § 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Van Hoose, 4 Vet. App. at 361. In this case, while the appeal for increased ratings for right and left knee disabilities and a cervical spine disability was pending, the Veteran contended in a January 2017 VA Form 21-8940 and an October 2017 NOD that he was prevented from securing or following any substantially gainful occupation due to these disabilities. Therefore, the issue of entitlement to a TDIU is part-and-parcel of the increased rating claims on appeal. See Rice, 22 Vet. App. at 453-54. Although a TDIU was awarded effective December 1, 2016, it was not granted for the entire appeal period, which dates back to February 26, 2009, the effective date of service connection for all three disabilities. Harper, 30 Vet. App. at 362. The issue of entitlement to a TDIU remains on appeal as part-and-parcel of the increased rating claims because it was not granted in full. See Harper and Payne. Accordingly, the Board has jurisdiction over the issue of entitlement to a TDIU prior to December 1, 2016, and should address the issue in its decision. The Court held that in determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the Veteran's history, education, skill and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, "By discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." See Ray v. Wilkie, 31 Vet. App. 58 (2019). The Board finds that the weight of the evidence does not demonstrate that the Veteran was rendered unemployable due to service-connected disabilities prior to December 1, 2016, which is the date the Veteran first submitted a claim for TDIU. The record is unclear as to the last date of the Veteran’s employment. In correspondence submitted the same day as his TDIU claim, the Veteran indicated he quit working in 2012; however, his TDIU application indicates he last worked in 2008. Compare December 2016 Correspondence and December 2016 VA Form 21-4192. Medical records prior to 2016 mention that the Veteran was unemployed, but the records do not provide any underlying reason nor precise timeline. See generally VA Medical Treatment Records. In May 2012, the Veteran indicated he was unemployed, but he did not express a reason for his unemployment. See May 2012 Correspondence. A note in May 2009 indicates that the Veteran was unemployed due to legal problems at his previous job, and he had not worked for 10-20 years. See May 2009 VA Examination. In November 2000, the Veteran indicated he had been fired from a job due to insubordination and death threats. See November 2000 VA Examination. The record also includes the findings of the June 2013 and April 2014 VA examinations regarding the spine and knees that indicated that the disabilities did not impact employment. A July 2015, VA psychiatric examination noted issues with memory, anxiety, depressed mood, disturbances of mood and motive, chronic sleep impairment, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively and difficulty in adapting to stressful circumstances, including work or a worklike setting. The evidence shows that prior to December 1, 2016 that while the Veteran's service-connected disabilities resulted in some physical impairment due to physical limitations and mental impairment, the weight of the evidence does not demonstrate that the Veteran's service-connected disabilities alone were of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. Although the record shows that the Veteran was unemployed prior to his application for TDIU in December 2016, the record does not show prior to that date that such unemployment was a result of his service-connected disabilities. As the preponderance of evidence does not support the claim, an earlier effective date for TDIU is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.