Citation Nr: 21021099 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 09-34 008 DATE: April 9, 2021 ORDER Entitlement to an initial disability rating higher than 20 percent for a back disability is denied. Entitlement to an initial disability rating higher than 20 percent for a neck disability is denied. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected back disability was not manifest by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks. 2. The Veteran’s neck disability was not manifest by forward flexion of the thoracolumbar spine of 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks. 3. The most probative evidence indicates that the Veteran’s service-connected back, neck and skin disabilities did not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for an initial disability rating higher than 20 percent for a neck disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for a TDIU, on an extraschedular basis, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1980 and from March 1981 to August 1994. In November 2017, the Board issued a decision denying a rating in excess of 20 percent for the cervical spine, denying an initial rating in excess of 10 percent for the thoracolumbar spine prior to January 28, 2015, and awarding a 20 percent rating thereafter. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, pursuant to a joint motion for remand (JMR), the Court vacated the Board’s November 2017 decision as to the matters of a cervical spine rating in excess of 20 percent and a thoracolumbar spine rating in excess of 10 percent prior to January 28, 2015 and in excess of 20 percent thereafter. The Board then remanded these issues in March 2016 and January 2017 for additional development. In February 2019, the Board issued a decision denying a rating in excess of 20 percent for the cervical spine, denying a rating in excess of 10 percent for the thoracolumbar spine prior to January 28, 2015, and denying a rating in excess of 20 percent thereafter. The Veteran appealed the Board’s February 2019 decision to the Court. In August 2020, the Court vacated the Board’s February 2019 decision and remanded the matters for action in accordance with a JMR. In July 2020, the Board remanded the appeal to for appropriate action in accordance with the JMR. In a rating decision in October 2020, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s disability rating for the back and neck disabilities to 20 percent, respectively, effective July 11, 2003, the date the claims were received. Because the increased ratings do not represent a grant of the maximum benefits allowable, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Court has held that a claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a November 2020 statement, the Veteran’s representative raised a claim for a TDIU as part of the increased rating claims on appeal. In light of the Court’s holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). 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 claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. By way of background, a July 2003 clinical record noted complaints of neck pain when tilting the head backwards. The assessment was likely cervical spine degenerative joint disease (DJD). An October 2004 cervical spine MRI revealed degenerative disc disease (DDD). An August 2005 clinical record noted complaints of neck and upper back pain. The Veteran denied weakness, numbness, and bowel/bladder problems. Muscle strength was normal for all extremities. Deep tendon reflexes were hypoactive 1+. A June 2006 clinical record noted complaints of chronic neck and upper back pain. On examination, tenderness of the posterior neck was noted. Pain was elicited by motion. The upper back exhibited tenderness on palpation of the paraspinal region. There was no swelling or muscle spasm. Motor strength of the upper and lower extremities was normal. The assessment was cervical neuritis. Cervical spine MRI showed multilevel DDD. An April 2008 clinical treatment note recorded complaints of neck, right shoulder, and upper back pain after digging fence posts. Examination of the cervical spine showed normal range of motion without weakness. There was mild paraspinal tenderness was noted on palpation. Examination of the thoracic spine showed a spasm of the paraspinal muscles right scapula bound down against thoracic back. The Veteran’s gait was normal and there was no radiation of lower back pain. The assessment was a thoracic back strain. A May 2008 clinical record noted paravertebral spasm and point tenderness in the thoracolumbar spine. On October 2008 VA cervical and thoracolumbar spine examination, the Veteran reported constant lower neck pain, stiffness, and numbness. Objective range of motion testing showed cervical flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 35 degrees, and right and left lateral rotation to 60 degrees, each. There was pain at the end of each movement. The combined range of motion was 240 degrees. Although repetitive use testing showed additional limitation due to pain, fatigue, weakness, and lack of endurance, there was no additional loss of range of motion. Radiating pain, muscle spasm and ankylosis were not present. There was tenderness at C7-T1. Upper extremity testing showed normal motor function, normal sensory function, and hypoactive reflexes. X-rays showed degenerative arthritis and DDD. The Veteran reported constant low back pain with stiffness and numbness. He denied bowel/bladder problems. His gait and posture were within normal limits. Objective range of motion testing showed forward flexion to 90 degrees, extension to 30 degrees, right and left lateral bending to 30 degrees, each, and right and left rotation to 30 degrees, each. There was pain at the end of each range of motion. Although repetitive use testing showed additional limitation due to pain, fatigue, and weakness, there was no additional loss of range of motion. Lower extremity testing showed normal motor function, normal sensory function, and hypoactive reflexes. X-rays showed degenerative arthritis of the thoracic spine, but his lumbar spine was normal. There were no signs of IVDS. There was symmetry of spinal motion with normal curves of the spine. The examiner opined that the Veteran’s entire spine limited his ability to perform overhead work, lifting, and carrying. An April 2009 VA primary care record noted that the Veteran transitioned from sitting to standing and vice versa without hesitation or evidence of pain. He stood straight with a level pelvis and normal thoracolumbar curvature. His back was diffusely tender to palpation. Range of motion testing showed flexion to 80 degrees, extension to 10 degrees, and right and left lateral bending 15 degrees, each. On December 2010 VA cervical and thoracolumbar spine examination, the Veteran reported constant localized neck pain with stiffness, numbness, and paresthesias. He reported flare-ups which limited range of motion and overhead work. The Veteran denied fatigue, spasms, erectile dysfunction, and bowel/bladder problems. Objective range of motion testing showed cervical flexion to 35 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, each, right lateral rotation to 30 degrees, and left lateral rotation to 50 degrees. The examiner noted pain at the end of each movement. The combined range of motion was 195 degrees. On repetitive use testing, there was no additional loss of function or range of motion. There was no evidence of radiating pain, weakness, loss of tone, or atrophy of the limbs. Upper extremity testing showed normal motor and sensory function. Tenderness was noted in the C5-C7 area. There was cervical paraspinal muscle guarding. The cervical spine was not ankylosed. There was no change in the established diagnoses of DJD and DDD. Regarding the low back, the Veteran reported constant low back pain with stiffness, numbness, and weakness. He denied erectile dysfunction and bowel/bladder problems. His gait and posture were within normal limits. He reported flare-ups that limit his ability to bend, twist, lift weight, and walk. Objective range of motion testing showed forward flexion to 80 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, and right and left rotation to 30 degrees, each. The examiner noted pain at the end of each range of motion. On repetitive use testing, there was no additional loss of function or range of motion. There was no evidence of radiating pain. Tenderness was noted in the L4 to S1 area. Paraspinal muscle spasm was noted with guarding that did not produce an abnormal gait or spinal contour. Muscle strength and bulk were normal. Lower extremity testing showed normal motor function, normal sensory function, and hypoactive reflexes. Muscle atrophy, ankylosis, and IVDS were not shown. There was no change in the established diagnosis of thoracolumbar spine DJD. The examiner opined that the Veteran’s spine conditions made it difficult to walk. An April 2011 clinical record notes a complaint of back pain of three weeks duration following an injury lifting weights. Examination of the neck showed normal range of motion with pain on flexion, extension, and laterally to the right. The lower cervical spine was tender to palpation; laxity and weakness were not shown. The thoracic spine had a normal appearance with no evidence of spasm. In a September 2011 note a private nurse practitioner indicated that the Veteran needed to remain on a limited activity profile (in his job in security) due to chronic neck pain and cervical disc disease. He was restricted in his ability to run, do sit-ups, pushups, or dummy drag. A July 2012 rehabilitation care services report notes complaints of neck that occasionally radiated to the right arm. The Veteran also reported back pain. He denied lower extremity numbness/tingling and bowel/bladder problems. Cervical spine range of motion testing showed flexion to 45 degrees, extension to 50 degrees, and right and left rotation to 70 degrees, each. Muscle strength was normal. Sensation was intact to light touch. Reflexes were hypoactive 1+. The Veteran’s gait was normal. Cervical spine x-rays showed no significant abnormality. The examiner noted no clinical evidence of focal radiculopathy. A March 2014 VA physical therapy record notes that the cervical spine showed full range of motion. The thoracic spine showed decreased rotation, bilaterally, with moderate stiffness. The Veteran reported working as an emergency room clerk and reported exercising twice a week using the elliptical machine, treadmill, and light weights. On examination, cervical range of motion was flexion to 45 degrees, extension to 50 degrees, and right and left rotation to 70 degrees, each. Tenderness to palpation was noted along the entire length of his spine midline. Muscle strength was normal, sensation was intact to light touch and reflexes were hypoactive 1+. His gait was normal. An August 2014 VA clinical record noted complaints of neck and upper thoracic pain. Cervical spine range of motion testing showed forward flexion to 50 degrees, extension to 50 degrees, right rotation to 80 degrees, and left rotation to 80 degrees. Tenderness to palpation was noted in the right periscapular musculature. Muscle strength was normal, sensation was intact to light touch and reflexes were hypoactive 1+. His gait was normal. A December 2014 VA acupuncture record noted that neck range of motion was decreased to lateral rotation by about 30 percent. On January 2015 VA cervical and thoracolumbar spine examination, the Veteran reported constant, sharp neck pains, limited range of motion and weakness. He denied fatigue and incoordination. He reported daily moderate flare-ups lasting a few hours that were painful and limited his ability to stretch. Objective range of motion testing showed cervical flexion to 40 degrees, extension to 40 degrees, right and left lateral flexion to 25 degrees, each, right lateral rotation to 55 degrees, and left lateral rotation to 65 degrees; the combined range of motion was 250 degrees. Pain was noted on examination and caused functional loss, however, there was no evidence of additional pain with weight bearing. On repetitive use testing, there was no additional loss of function or range of motion. The examiner stated that it would be speculative to opine as to whether or not pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time. Tenderness with spasm was noted in the lower neck muscles, but it was not productive of guarding, abnormal gait, or abnormal spinal contour. Muscle strength testing, deep tendon reflexes, and sensory examination were all normal. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. Muscle atrophy, ankylosis, and IVDS were not shown; the Veteran denied bowel/bladder problems. The diagnosis was degenerative arthritis. The examiner opined that work requiring neck movement was precluded. Regarding his low back, the Veteran reported constant pain that is worsened by physical activity, as well as weakness. He denied fatigue, incoordination, bowel/bladder problems, and sciatica. He reported flare-ups treated with ice or Bengay cream. Objective range of motion testing showed forward flexion to 70 degrees, extension to 20 degrees, right lateral bending to 25 degrees, left lateral bending to 20 degrees, and right and left rotation to 15 degrees, each. Pain was noted as the cause of functional loss. The examiner stated that it would be speculative to opine as to whether or not pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time. On repetitive use testing, there was no additional loss of function or range of motion. On palpation of the joints, mid thoracic and upper lumbar areas were moderately tender with spasm, partial loss of lumbar lordosis, and slight increase of thoracic kyphosis to approximately 30 degrees. The examiner noted that all movement was guarded because of spasm and pain during jarring, walking, and quick movements. Muscle strength and sensory testing were normal. Deep tendon reflexes were hypoactive 1+. Straight leg raising test was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. He denied bowel or bladder problems. Muscle atrophy, ankylosis, and IVDS were not shown. The diagnosis was degenerative arthritis of the spine. The examiner opined that the disability slowed the Veteran’s work due to pain. The examiner noted that the Veteran was working, but could not perform repetitive lifting, bending, or quick movements. An August 2015 VA treatment record showed complaints of low and mid-thoracic back pain. The Veteran denied numbness, tingling, and radiating pain to the extremities, as well as bowel/bladder problems. October 2014 x-rays showed significant DJD through spine without radicular symptoms. An April 2016 addendum opinion report prepared by the January 2015 examiner, acknowledged that the Veteran was not examined during a flare-up but explained that the Veteran engaged in repetitive use testing on examination and range of motion testing was conducted accordingly. A June 2016 residual functional capacity report for Social Security Administration (SSA) purposes noted that the Veteran could occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk 6 hours in an 8-hour workday, and sit 6 hours in an 8-hour workday. It was determined that the objective evidence supported a medium work capacity. The SSA disability determination report recorded a primary diagnosis of disorders of muscle (ligament and fascia) and secondary diagnosis of asthma. An October 2016 clinical record showed complaints of neck and right periscapular pain. Examination showed cervical spine range of motion was somewhat limited with extension. Upper right extremity strength, sensation, and deep tendon reflexes were normal. A November 2016 VA physical medicine diagnostic study report recorded complaints of right hand numbness. Examination showed full strength, intact sensation, and normal deep tendon reflexes. Nerve conduction study showed normal right median and ulnar nerves. There was no electrodiagnostic evidence of a right median neuropathy at the wrist or an ulnar neuropathy at the wrist or elbow. There was no evidence of a right upper extremity peripheral neuropathy. On July 2017 VA cervical and thoracolumbar spine examination, the Veteran reported pain centered at the lower cervical spine with tenderness to palpation extending to the right shoulder blade. He denied significant tingling, numbness, or weakness of the upper extremities. The Veteran reported flare-ups described as episodes when he just wanted to lie down and not do anything. He reported pain with all ranges of motion and explained that he could not sit up and work on a computer or read a book. Objective range of motion testing was full in all directions, including forward flexion and extension to 45 degrees, right and left lateral flexion to 45 degrees, each, and right and left lateral rotation to 80 degrees, each. The combined range of motion was 340 degrees. Pain was noted in all ranges of motion, contributing to functional loss. Pain was noted with weight bearing and on palpation at C5-C7. The Veteran was able to perform repetitive use testing, with no additional loss of function/range of motion. Although the Veteran was not examined during a flare-up or immediately after repetitive use over time (in this regard, it is important for the Veteran to understand that scheduling such an examination is nearly impossible to accomplish in that we never know when a flare-up will occur), the examiner noted that the exam was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Muscle spasm resulted in abnormal gait or abnormal spinal contour. Muscle strength testing, deep tendon reflexes and sensory examination were all normal. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. Muscle atrophy, ankylosis and IVDS were not shown. The diagnoses were degenerative arthritis of the spine and DDD. The examiner opined that the disability did not impact on the Veteran’s ability to work, but that flare-ups would limit physical activities such as lifting and prolonged sitting/standing. Regarding his low back, the Veteran described different types of pain, ranging from momentary, sharp, stabbing pain localized in the lower back, to shooting pain down the leg, to the inability to stand up straight for three to four days. He treated the pain with methocarbamol, icy-hot, and ice. He reported occasional use of a brace. Importantly, the Veteran denied flare-ups and any functional loss or impairment, regardless of repetitive use. Passive and active objective range of motion testing showed forward flexion to 90 degrees, extension to 20 degrees, right and left lateral bending to 30 degrees, each, and right and left rotation to 30 degrees, each. Pain was noted on extension, but not with weight bearing; the pain did result in/cause functional loss. On repetitive use testing, there was no additional loss of function or range of motion. Mild tenderness was noted on palpation of the paraspinal muscles adjacent to L1-L4. The Veteran did not have muscle spasm or guarding of the thoracolumbar spine. Muscle strength testing, deep tendon reflexes and sensory examination were all normal. Straight leg raising test was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. He denied bowel or bladder problems. Muscle atrophy, ankylosis, and IVDS were not noted. The diagnoses were degenerative arthritis of the spine and DDD. The examiner opined that the disability did not impact on the Veteran’s ability to work. VA treatment notes in 2019 reflect complaints of right upper extremity radicular symptoms, no symptoms of lumbar radiculopathy were noted. In May 2019 the Veteran complained of low back and neck pain. He reported numbness of the feet and right hand. His symptoms worsened with pushing, pulling, lifting and yard work type physical activities. The Veteran, who was retired, reported going to school. Neurological screening revealed no abnormalities. Lower extremity reflexes were normal, bilaterally. Muscle strength was normal. In witness statements in January 2019, the Veteran’s son reported that the Veteran’s pain limited his mobility and impaired his ability to drive or engage in other recreational activities like fishing and working on cars. In February 2020, the Veteran reported that he was unable to continue participating in the vocational rehabilitation program due to a decline in health, to specifically include prostate cancer, chronic pain, and lack of sleep. On VA examination in August 2020 the examiner noted DDD and DJD of the cervical spine. The Veteran complained of pain in the posterior neck around the spine, worse with repetitive movement of the neck, reports numbness/tingling in hands and feet. He treated his symptoms with chiropractic therapies hypnotic therapies, Tylenol, Lidocaine patches and Icy Hot topical. The Veteran endorsed flare-ups in symptoms with increased pain that impaired his ability to move his neck and look around. Range of motion of the spine showed forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 60 degrees. There was no additional loss of motion or function with repetitive movement. There was objective evidence of pain. With flare-ups and repetitive use over time, forward flexion reduced to 20 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees and left lateral rotation to 50 degrees. There was no localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no muscle spasm or guarding. There was pain on weight bearing. Muscle strength was normal in both upper extremities, with no atrophy. Reflexes and sensory examination were also normal, bilaterally. The examiner noted no signs or symptoms of radiculopathy. There was no ankylosis. There was no IVDS. The Veteran did not require assistive devices. Functionally and occupationally, the Veteran’s neck disability limited his ability to drive due to loss of range of motion, looking around, also crane operation/other equipment operation limited due to loss of range of motion looking up. There was no objective evidence of pain when non-weight bearing. There was no objective evidence of pain with passive range of motion or additional limitation of motion. On VA examination in August 2020 the examiner noted degenerative arthritis of the thoracolumbar spine. The Veteran complained of chronic back pain and fatigue with heavy use of his back. He treated his symptoms with chiropractic therapies hypnotic therapies, Tylenol, Lidocaine patches and Icy Hot topical. The Veteran endorsed flare-ups in symptoms with increased pain that impaired his ability to sit in the same position for a long time and limited his ability to do any lifting. Range of motion of the spine showed forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 30 degrees. There was no additional loss of motion or function with repetitive movement. There was objective evidence of pain. With flare-ups and repetitive use over time, forward flexion reduced to 40 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees and left lateral rotation to 20 degrees. There was objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no muscle spasm or guarding. There was pain on weight bearing. Muscle strength was normal in both lower extremities, with no atrophy. Reflexes and sensory examination were also normal, bilaterally. Straight leg raising was negative, bilaterally. The examiner noted no signs or symptoms of radiculopathy or other neurological abnormalities. There was no ankylosis. There was no IVDS. The Veteran did not require assistive devices. The examiner determined that the Veteran’s back condition was productive of no occupational or functional impairment. There was no objective evidence of pain on non-weight bearing. There was no objective evidence of pain with passive range of motion or additional limitation of motion. In addendum opinion reports in September 2020 and October 2020 (to address the concerns of the Court), the VA examiner reviewed the VA examinations dated December 2010, January 2015 and July 2017, and concluded that beginning in December 2010 the Veteran’s neck disability on a more probable basis than not experienced intermittent flares with increased pain and stiffness, these flares occurred likely approximately once every 2 months and resulted in loss of neck range of motion to be 35 degrees in flexion, 20 degrees in extension, 25 degrees in lateral flexion bilaterally, and 15 degrees in rotation bilaterally. In 2010 there was no functional loss and the Veteran was able to control with medication Beginning in 2015, the pain became more severe and was not immediately relieved with medical therapy. The flare ups would likely have lasted from 2 to 4 days and resulted in inability to look up and around, thus jobs such as crane operator would have been restricted. The remaining range of motion for the cervical spine with a flare up was estimated to be to 20 degrees on flexion, 20 degrees on extension, 10 degrees on lateral bending bilaterally, 10 on degrees right lateral rotation and 50 degrees on left lateral rotation. Concerning the Veteran’s back disability, the examiner opined that on a more probable basis than not, the Veteran experienced intermittent flares with increased pain and stiffness, these flares occurred likely approximately once every two months and resulted in loss of thoracolumbar spine range of motion with flexion limited to 70 degrees, 20 degrees in extension, 20 degrees in lateral flexion bilaterally, and 15 degrees in rotation, bilaterally. In 2010 there was no functional loss and the Veteran was able to control his symptoms with medication. Beginning in 2015 the pain became more severe and it was not immediately relieved with medical therapy. The flare ups would likely have lasted from 2 to 4 days and resulted in inability bend repetitively, lift heavy objects, or sit/stand for prolonged periods. The remaining range of motion with a flare up for the lumbar spine was estimated to be 40 degrees flexion, 0 degrees extension, 10 degrees lateral bending bilaterally, 10 degrees of right lateral rotation and 20 degrees of left lateral rotation, providing evidence against this case. 1. Entitlement to an initial disability rating higher than 20 percent for a back disability The Veteran contends that he is entitled to a higher disability rating than that currently assigned for the back. Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran’s service-connected back disability is currently rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability 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. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. 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 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. Important for this case, a rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. Initially, the Board notes that at no point throughout the appeal, does the evidence show, nor does the Veteran claim, physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a total of at least four weeks during any given 12 months period. Significantly, the VA examiners found no evidence of IVDS. Accordingly, the Board finds that he is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. The Veteran’s back disability was rated as 20 percent disabling. To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. During the period on appeal, the only recorded range of motion findings show the Veteran’s flexion was noted, at worst, to 40 degrees with repetitive movement and on flare-ups pain. There is no evidence that his forward flexion of the lumbar spine was limited to 30 degrees. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5242. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment. While throughout the appeal the Veteran occasionally reported numbness and tingling in his feet, no neurological impairment in the lower extremities as a result of his service-connected back disorder was reported, and the VA examiners specifically found no neurologic impairment associated with the back, to specifically include radiculopathy of the lower extremities. For this reason, separate ratings for objective neurological abnormalities were not warranted at any time during the period on appeal. Accordingly, the preponderance of the evidence weighs against the Veteran’s claim of entitlement to an initial disability rating higher than 20 percent for the back disability. 38 U.S.C. § 5107(b); Gilbert, supra. 2. Entitlement to an initial disability rating higher than 20 percent for a neck disability The Veteran contends that he is entitled to a higher disability rating than that currently assigned for his neck disability. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A higher 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Initially, the Board notes that the evidence does not show, nor does the Veteran claim, physician-prescribed bed rest or incapacitating episodes as defined by VA regulation. Consistent with this finding, neither VA examination reports nor treatment records, show IVDS with incapacitating episodes lasting a total of at least 4 weeks during any given 12 months period. Accordingly, the Board finds that he is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. To warrant a higher rating of 30 percent, there must be evidence of limitation of flexion to 15 degrees or less, or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. During this period, the only recorded range of motion findings show the Veteran’s flexion was noted to, at worst, 20 degrees with pain, on repetitive movements and during flare-ups. There is no evidence that his forward flexion of the cervical spine was limited to 15 degrees due to pain on repetition. 38 C.F.R. § 4. 40, 4.45. Further, there is no evidence to support a finding consistent with cervical spine ankylosis or any limitation of motion that reasonably approximated ankylosis. Rather, the evidence shows that the Veteran retains movement in his neck, and the VA examiners repeatedly found no evidence of ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. In this regard, regarding both claims, it is important for the Veteran to understand that these conditions have undergone extensive evaluation over many years (the Board apologies for the delay, at some points in this case Board and/or RO decisions were vacated based on decisions that did not exist when the case was adjudicated). Many of these examinations not only do not support an increase rating, but in some cases provide significant evidence against the current evaluations. The examinations provide highly probative detailed evidence against these claims. Further examinations, based on a detailed review of the evidence, simply will not provide a basis to grant these claims. Consideration has been given to assigning a separate rating for neurological abnormalities related to the cervical spine disability or back. While throughout the appeal the Veteran occasionally reported numbness and tingling in his hands, no neurological impairment in the upper extremities as a result of his service-connected neck disorder was reported, and nerve conduction studies and the VA examiners specifically found no neurologic impairment associated with the neck, to specifically include radiculopathy of the upper extremities. For this reason, separate ratings for objective neurological abnormalities are not warranted at any time during the period on appeal. In sum, the preponderance of the evidence weighs against the Veteran’s claim of entitlement to an initial disability rating higher than 20 percent for the neck disability. 38 U.S.C. § 5107(b); Gilbert, supra. 3. Entitlement to a TDIU The Veteran contends that his service-connected disabilities, to specifically include his neck and back disability, render him unemployable. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching that 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 (1993). 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 her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; 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, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Here, service connection is currently in effect for: • A back disability, evaluated as 20% disabled • A neck disability, evaluated as 20% disabled; and • Seborrheic dermatitis, evaluated as 0% disabled. The Veteran’s combined disability evaluation is 40 percent. The question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities, taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. The Veteran’s educational and occupational background is unclear. While in a November 2020 statement, the Veteran’s representative raised a claim for a TDIU effective from July 11, 2003, the evidence of records shows that the Veteran has been employed throughout most of the appeal. From 2003 to September 2015, the Veteran reported being employed full time as a bus driver, a security guard and a medical support assistant. VA treatment notes in 2019 reflect that the Veteran, who was retired, was going to school. Concerning his neck disability, a VA examiner in January 2015 opined that work requiring neck movement was precluded. On July 2017 VA examination, the examiner opined that the disability did not impact on the Veteran’s ability to work, but that flare-ups would limit physical activities such as lifting and prolonged sitting/standing. On VA examination in August 2020 the examiner opined that functionally and occupationally, the Veteran’s neck disability limited his ability to drive due to loss of range of motion, looking around, also crane operation/other equipment operation limited due to loss of range of motion looking up. Regarding his low back, a VA examiner in January 2015 opined that the disability slowed the Veteran’s work due to pain. The examiner noted that the Veteran was working, but could not perform repetitive lifting, bending, or quick movements. A VA examiner in July 2017 opined that the disability did not impact on the Veteran’s ability to work. On VA examination in August 2020 the examiner opined that the Veteran’s back condition was productive of no occupational or functional impairment. Concerning his seborrheic dermatitis, there is no indication, nor has the Veteran asserted, that the skin condition is productive of any occupational impairment. A June 2016 residual functional capacity report for SSA purposes noted that the Veteran could occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk 6 hours in an 8-hour workday, and sit 6 hours in an 8-hour workday. It was determined that the objective evidence supported a medium work capacity. The SSA disability determination report recorded a primary diagnosis of disorders of muscle (ligament and fascia) and secondary diagnosis of asthma, providing evidence against this claim as it clearly indicates problems not associated with service. Therefore, the Board finds that while the Veteran’s service-connected disabilities were productive of some occupational limitations, the objective medical evidence, to include VA examination reports, did not support a finding that the Veteran’s service-connected disabilities, separately or combined, precluded his employment. The VA examiners addressed the question of employability directly and their opinions are consistent. Moreover, the VA examination opinion reports, as outlined above, fail to show that the Veteran’s service-connected disabilities either singularly or jointly, precluded the Veteran from gainful employment, and collectively provided evidence of high probative value against this finding. The Board acknowledges lay statements from the Veteran addressing the impact of his service-connected disabilities on his ability to work during the period of the appeal. No one is suggesting the Veteran’s service-connected disabilities do not cause the Veteran many problems. If he did not have issues with her service-connected problems, there would be no basis for compensable evaluations for these disabilities. While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment (or the level of disability based on the criteria cited above, which, as noted above, it complex, even for the undersigned) due to the service-connected disabilities (and not his age or nonservice-connected problems) is beyond his medical expertise. See Jandreau, supra. In this regard, given the complexity of the issues, the Veteran has been given every consideration, leading to the current evaluations (which, as noted above, is not supported by all the evidence in this case). Thus, any such lay statements regarding being unable to work are not competent or sufficient. Simply stated, both the best factual evidence, including occupational history reported by the Veteran, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim. Accordingly, the Board concludes that referral of this issue for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16 (b), is not appropriate, and that a TDIU is not warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.