Citation Nr: 21026661 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 07-18 313 DATE: May 3, 2021 ORDER Throughout the period on appeal, entitlement to an initial rating greater than 20 percent for a right shoulder disability characterized as right labrum tear with cyst formation is denied. Prior to March 25, 2011, and from May 1, 2011, entitlement to an initial rating greater than 20 percent for degenerative disc disease of the cervical spine with stenosis, status post laminectomy is denied. From October 21, 2019, entitlement to an initial rating greater than 20 percent for radiculopathy of the right upper extremity is denied. From October 21, 2019, entitlement to an initial rating greater than 20 percent for radiculopathy of the left upper extremity is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the entire period on appeal, symptoms of the Veteran's service-connected right shoulder disability are manifested by, at worst, limitation of flexion and abduction of the arm to 85 degrees with pain. 2. Throughout the entire period on appeal, symptoms of the Veteran's service-connected degenerative disc disease of the cervical spine disability are manifested by, at worst, flexion to 20 degrees with pain and a combined range of motion of at worst 140 degrees with pain, without incapacitating episodes. 3. From October 21, 2019, the Veteran has had mild incomplete paralysis of the upper radicular group of the minor and major upper extremities. 4. For the entire period on appeal, the Veteran's service-connected disabilities have prevented the him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for an initial rating greater than 20 percent for right labrum tear with cyst formation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. Prior to March 25, 2011 and May 1, 2011, the criteria for an initial rating greater than 20 percent for degenerative disc disease of the cervical spine with stenosis, status post laminectomy of the cervical spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. From October 21, 2019, the criteria for an initial rating greater than 20 percent for radiculopathy of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8510. 4. From October 21, 2019, the criteria for an initial rating greater than 20 percent for radiculopathy of the left upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8510. 5. For the entire period on appeal, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from June 2002 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in June 2006, which in pertinent part, granted service connection for a cervical spine condition and a right shoulder condition and a rating decision dated in June 2006, which in pertinent part, denied entitlement to a TDIU. In June 2009, May 2015 and February 2019, the Board, in pertinent part, remanded the claims to the AOJ for additional development. In June 2020, the AOJ granted service connection for left upper extremity radiculopathy with a noncompensable rating from October 21, 2019; and service connection for right upper extremity radiculopathy with a noncompensable rating from October 21, 2019. In July 2020, based upon a special review of the Veteran's file, the AOJ granted separate 20 percent ratings for radiculopathy of the bilateral upper extremities from October 21, 2019. Because the grant of service connection and the increase in evaluation of the Veteran's radiculopathy of the bilateral upper extremities does not represent the maximum evaluation available for the Veteran's service connected cervical spine disability, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The Veteran seeks an increased rating for his right shoulder disability and his cervical spine disability, which are rated under the schedule of ratings for the musculoskeletal system. 38 C.F.R. § 4.71a. 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 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)). 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. 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). In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the United States Court of Appeals for Veterans Claims (Court) clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. 1. Entitlement to a rating greater than 20 percent for a right shoulder disability The Veteran filed an appeal of a November 2005 rating decision, which granted service connection for right labrum tear with cyst formation with an evaluation of 20 percent effective September 2, 2004. After a review of the evidence, for reasons set forth below, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's right shoulder disability characterized as right labrum tear with cyst formation for the entire period on appeal. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201, using the major upper extremity ratings as the record indicates that the Veteran is right-handed. 38 C.F.R. § 4.69. The Board will consider whether the Veteran is entitled to receive higher ratings for his right shoulder disability under all applicable diagnostic codes. VA revised DC 5201, effective February 7, 2021. See 82 Fed. Reg. 35719. The revisions to DC 5201 essentially clarify the specific ranges of motion that qualify for the specific criteria and corresponding disability rating. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C. § 5110 (g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as the amendment discussed above has a specified effective date without provision for retroactive application, the amendment may not be applied prior to its effective date. As of the effective date, February 7, 2021, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. Under the former criteria set forth in DC 5201, for the major arm, limitation of motion at the shoulder level, warranted a 20 percent rating. A 30 percent rating required limitation of motion to midway between the side and shoulder level, while a 40 percent rating required limitation of motion limited to 25 degrees from the side. Under criteria that became effective February 7, 2021, for the major arm, DC 5201 still provides a 20 percent rating for limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is warranted for limitation of motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). A 40 percent rating is warranted for limitation of motion limited to 25 degrees from the side. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , DC 5201). For VA compensation purposes, normal forward elevation (flexion) of the shoulder is 0 to 180 degrees and abduction is 0 to 90 degrees for internal and external rotation. See 38 C.F.R. § 4.71, Plate I. The Veteran was afforded a VA examination in May 2004, which reflected a diagnosis of right shoulder superior labrale tear with cyst formation at the posterior portion of the labrum; a VA examination in March 2006, which reflected a diagnosis of chronic right shoulder pain secondary to rotator tendinopathy; an August 2016 VA examination, which reflected a diagnosis of rotator cuff tendonitis; and an October 2019 VA examination, which reflected a diagnosis of right labrum tear with cyst formation. A review of the record reveals that, while the most recent VA examination in October 2019 satisfies the requirements of Correia and Sharp, the prior VA examinations do not satisfy the requirements of Correia and Sharp. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to October 2019, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. VA examinations and treatment records during this appeal period have reflected limited and painful range of motion of the Veteran's right shoulder on flexion, abduction, as well as internal and external rotation. The Board finds that evidence of record reflects that the Veteran had limitation of flexion and abduction no worse than 85 degrees with pain. See May 2004 VA examination (forward extension to 100 degrees with pain and abduction to 130 degrees with pain); March 2006 VA treatment record (flexion and abduction to 85 degrees with pain); March 2006 VA examination (flexion to 85 degrees with pain and abduction to 95 degrees with pain); August 2016 VA examination (flexion and abduction to 90 degrees with pain); and October 2019 VA examination (flexion to 95 degrees with pain and abduction to 140 degrees with pain). Based on the evidence as outlined above, the Veteran's right shoulder disability does not warrant an initial rating in excess of 20 percent for the entire period on appeal under DC 5201 because the evidence of record does not reflect that the Veteran had limitation of flexion and/or abduction of the right arm to 45 degrees, the requirement for a 30 percent rating for limitation of motion of the Veteran's right shoulder even with the factors outlined in DeLuca, Correia, and Sharp. Other appropriate diagnostic codes for application have been considered. However, the Veteran's right shoulder disability does not reflect findings of ankylosis at any time during the pendency of the appeal, therefore, DC 5200 does not apply and even with consideration of the DeLuca factors as outlined above, the demonstrated symptomatology is not analogous to ankylosis. 38 C.F.R. § 4.71a. The medical evidence of record clearly shows that the Veteran's right shoulder is not ankylosed at any level. Although the Veteran's right shoulder disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. In addition, the Veteran's right shoulder disability does not reflect that the Veteran had a shoulder replacement; impairment of the humerus; or impairment of the clavicle or scapula, during the period on appeal; thus, DCs 5051, 5202, and 5203 are not applicable in this case. See May 2004, March 2006, August 2016, and October 2019 VA examinations. Finally, the Veteran's right shoulder disability does not reflect findings of degenerative arthritis or post-traumatic arthritis at any time during the pendency of the appeal, therefore, DCs 5003 and 5010 do not apply. 38 C.F.R. § 4.71a. See February 2004 MRI of the right shoulder; May 2004 x-ray of the right shoulder; and January 2006 MRI of the right shoulder. The Board has considered the lay testimony and statements of record regarding the severity of the Veteran's right shoulder disability and has relied on these reports in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not described findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). See March 2009 hearing testimony. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence does not warrant a rating greater than 20 percent throughout the period on appeal. 2. Entitlement to a rating greater than 20 percent for degenerative disc disease of the cervical spine, status post laminectomy 3. Entitlement to a rating greater than 20 percent for radiculopathy of the right upper extremity 4. Entitlement to a rating greater than 20 percent for radiculopathy of the left upper extremity As noted, during the pendency of the current appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities. See 85 Fed. Reg. 76,453 (November 30, 2020). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a , DCs 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. The Veteran filed an appeal of a November 2005 rating decision, which granted service connection for cervical spine degenerative disc disease status post-operative with an evaluation of 20 percent effective September 2, 2004. An April 2012 rating decision granted a temporary 100 percent rating effective March 25, 2011, based on surgical or other treatment necessitating convalescence, and a continued a 20 percent rating from May 1, 2011. See also March 2011 VA treatment record. A June 2020 rating decision granted service connection for radiculopathy of the left and right upper extremity with noncompensable ratings effective October 21, 2019. In June 2020, a special review of the Veteran's file was mandated, and a July 2020 rating decision granted 20 percent ratings for radiculopathy of the left and right upper extremities effective October 21, 2019. After a review of the evidence, for reasons set forth below, the Board finds that a rating greater than 20 percent is not warranted for the Veteran's degenerative disc disease of the cervical spine throughout the period on appeal and ratings in excess of 20 percent are not warranted for the Veteran's bilateral upper extremity radiculopathy. The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, DC 5243. The Board will consider whether the Veteran is entitled to receive higher ratings for his cervical spine disability under all applicable diagnostic codes. Prior to May 2011, the Veteran had a diagnosis of degenerative disc disease of the cervical spine, status post laminectomy with stenosis at C4-C5 and neural foraminal narrowing prior to May 2011. See May 2004 VA examination; see also January 2006 Social Security Administration (SSA) examination; March 2006 VA examination; January 2010 VA treatment record. The Veteran underwent an anterior cervical discectomy and fusion (ACDF) of C6-C7 in March 2011. The Veteran's diagnosis before and after the surgical procedural was a herniated nucleus pulposus (HNP) of C6-C7. The Veteran has a current diagnosis of degenerative disc disease and intervertebral disc syndrome of the cervical spine, status post laminectomy and foraminotomy. See August 2016 and October 2019 VA examinations. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note 1. In this case, the Veteran has radiculopathy of the bilateral upper extremities, which is addressed in the following section. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 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 for Diseases and Injuries of the Spine, Note 2; See also 38 C.F.R. § 4.71a, Plate V. Under the General Formula, a 10 percent rating is warranted 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 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 of 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, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. A review of the record reveals that, while the most recent VA examination in October 2019 satisfies the requirements of Correia and Sharp, the VA examinations prior to October 2019 do not satisfy the requirements of Correia or Sharp. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to October 2019, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. VA examinations and treatment records during this appeal period have reflected limited and painful range of motion of the Veteran's cervical spine including on forward flexion. The Veteran's medical records indicate that the Veteran had limitation of forward flexion of the cervical spine no worse than 20 degrees and a combined range of motion no worse than 140 degrees. See May 2004 VA examination (forward flexion to 30 degrees, combined range of motion of 270 degrees); January 2006 SSA examination (forward flexion to 25 degrees, combined range of motion of 195 degrees); March 2006 VA examination (forward flexion 30 degrees, combined range of motion of 195 degrees); January 2010 VA treatment record (forward flexion to 20 degrees); August 2016 VA examination (forward flexion to 45 degrees, combined range of motion of 205 degrees); October 2019 VA examination (forward flexion to 40 degrees; combined range of motion of 140 degrees with pain). The Veteran's cervical spine disability does not reflect findings of favorable or unfavorable ankylosis at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, General Rating. See August 2016 and October 2019 VA examination. The medical evidence of record clearly shows that the Veteran's spine is not ankylosed at any level. Although the Veteran's cervical spine disability does manifest in some limitation of motion from pain and stiffness and the Veteran was unable to fully rotate his head following his surgical procedures. The evidence of record does not reflect that this cervical spine is in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. Favorable ankylosis is fixation of a spinal segment in neutral position and unfavorable ankylosis is a condition in which the entire cervical spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating at Note 5. The Board finds that based on the evidence as outlined above, the Veteran's cervical spine disability does not warrant a rating in excess of 20 percent prior to March 25, 2011; and does not warrant a rating in excess of 20 percent from May 1, 2011, because the evidence of record does not reflect that the Veteran had forward flexion of the cervical spine of 15 degrees or less; or ankylosis of the cervical spine. The Board has considered whether the Veteran is entitled to a higher rating under DC 5243 which provides rating for IVDS with incapacitating episodes. Under both the former and revised rating criteria, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2020); 85 Fed. Reg. 76,453 (November 30, 2020). Although the Veteran has a current diagnosis of IVDS from at least August 2016, the evidence of record does not reflect findings of IVDS with incapacitating episodes at any time during the pendency of the appeal. See also October 2019 VA examination. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. The Board notes that in March 2019 the Veteran testified that his neck would hurt him to the point where he would have neck spasms approximately 3 to 5 times a week. However, the Veteran's treatment records do not indicate that the Veteran had an incapacitating episode for the purposes of DC 5243 at any point during the period on appeal. Thus, the Board finds that the Veteran's cervical spine disability with limitation of motion does not warrant a rating greater than 20 percent for his cervical spine disability. With respect to associated neurologic impairment, as noted, the Veteran has been assigned separate 20 percent ratings for radiculopathy of the right and left upper extremities based on findings from an October 21, 2019 VA examination. The Board does not find that these ratings should be assigned for the entirety of the rating period nor are higher ratings warranted from October 21, 2019. The Veteran's bilateral upper extremity radiculopathy is rated pursuant to the provisions of DC 8510. DC 8510 provides the rating criteria for paralysis of the upper radicular group, and therefore, neuritis and neuralgia of the upper radicular group. 38 C.F.R. § 4.124a. Under DC 8510, a 20 percent disability rating is warranted for mild incomplete paralysis of the upper radicular group of the minor or major extremity. A 30 percent rating is warranted for moderate incomplete paralysis of the upper radicular group of the minor extremity and a 40 percent rating is warranted for moderate incomplete paralysis of the upper radicular group of the major extremity. A 40 percent rating is warranted for severe incomplete paralysis of the upper radicular group of the minor extremity and a 50 percent rating is warranted for severe incomplete paralysis of the upper radicular group of the major extremity. When there is complete paralysis of the upper radicular group, involving all shoulder and elbow movements lost or severely affected, with hand and wrist movements unaffected, a maximum 60 percent disability rating is warranted for the minor extremity, and a maximum 70 percent rating is warranted for the major extremity. 38 C.F.R. § 4.124a, DC 8510. Upon a review of the relevant evidence, the Board acknowledges that the Veteran's service treatment records reflect a diagnosis of cervical radiculopathy, status post laminectomy from April 2004 and that the diagnosis of cervical radiculopathy was carried through in post-service medical records. The Board notes that an April 2004 record in which a diagnosis of cervical radiculopathy was indicated, also indicated that examination of the Veteran's upper extremities was unremarkable, noting that there was 5/5 muscle strength in the upper and lower extremities; deep tendon reflexes were 2/4 in the bilateral upper and lower extremities; sensation to the upper extremities was intact bilaterally to light touch and pinprick with nerve roots of C3 through C7 grossly intact; and cranial nerves II to X11 were intact as well. On VA examination in June 2004, while the examiner noted the Veteran's history of degenerative disc disease of the cervical spine, status post laminectomy with continued stenosis at C4-C5 with neural foraminal narrowing and severe chronic pain syndrome, no associated pertinent upper extremity neurological symptoms were found; neurological examination revealed no pertinent abnormalities. On VA examination in March 2006, the examiner noted that neurological examination of the upper extremities was within normal limits. In March 2011 prior to the Veteran's second surgery, examination of the neck revealed decreased range of motion of the neck especially in extension as well as turning to the left. Spurling's test was positive on the left with reproduction of significant left shoulder pain. However, strength was full in all testable muscle groups and his sensation was intact to light touch throughout. Deep tendon reflexes were avid and symmetric throughout. There was no clonus and Hoffman's was negative. Further, in August 2016, a VA examiner also noted that the Veteran did not have radiculopathy. In October 2019, a VA examiner noted that the Veteran had radiculopathy of the bilateral upper radicular group, which was a progression of the Veteran's initial service-connected cervical spine disability. The Veteran reported chronic right upper arm pain with numbness and tingling. Physical examination revealed bilateral mild constant pain and moderate paresthesias and/or dysesthesias of the bilateral upper extremities but no numbness. Notably, muscle strength testing was normal, there was no muscle atrophy, and sensory examination was normal although deep tendon reflexes were 1+ in the bilateral upper extremities. The Veteran was noted to not use any assistive devices. The examiner described the severity of the radiculopathy as mild, bilaterally. The Board finds that the October 21, 2019 VA examination findings as reported and characterized by the examiner are appropriately rated as mild incomplete paralysis of the right and left upper extremities. Further, based on the foregoing the Board does not find that the Veteran had radiculopathy that was mild in severity prior to October 21, 2109 or that his bilateral upper extremity radiculopathy is currently moderate in severity. As such, an increased rating is not warranted on this basis. The Board has considered the lay testimony and statements of record regarding the severity of the Veteran's cervical spine disability and has relied on these reports in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. However, where they have not discussed findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri, supra. See April 2004 service treatment record, March 2009 hearing testimony. 5. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. The Veteran filed an appeal of a November 2005 rating decision, which granted service connection for cervical spine degenerative disc disease status post-operative with an evaluation of 20 percent effective September 2, 2004 and service connection for right labrum tear with cyst formation with an evaluation of 20 percent effective September 2, 2004. The Veteran filed a formal claim for TDIU March 2006. The Veteran reported that his service-connected neck and right shoulder disabilities prevented him from securing or following a substantially gainful occupation. He indicated that he became too disabled to work full-time in September 2004. The Veteran reported that he had worked as an airman in the U.S. Navy from June 2002 to September 2004 and separated due to his disabilities. The Veteran also indicated that he had one year of college. See also July 2006 notice of disagreement, August 2004 and June 2011 statements in support of claim. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU entitlement, disabilities of common etiology will be considered a single disability. Id. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is not currently defined in VA regulations; however, the term has been defined as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Throughout the entire period on appeal, the Veteran's service-connected disabilities include migraines with a 30 percent rating from September 2, 2004; a right shoulder disability with a 20 percent rating September 2, 2004; a cervical spine disability with a 20 percent rating from September 2, 2004, a 100 percent rating from March 25, 2011, and a 20 percent rating from May 1, 2011; a low back disability with a 10 percent rating from September 2, 2004; radiculopathy of the left upper extremity with a 20 percent rating from October 21, 2019; and radiculopathy of the right upper extremity with a 20 percent rating October 21, 2019. The Board notes that the Veteran's service-connected disabilities share a common etiology as they all stem from the Veteran's October 2002 in-service injury and resulting cervical spine and shoulder injuries and as such, qualify as a single disability, and have a combined rating of more than 60 percent effective from September 2, 2004; thus, the Board finds that the Veteran has met the threshold schedular criteria of 38 C.F.R. § 4.16(a) from September 2, 2004. See March 2004 service treatment records. After a review of the evidence, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that from September 2, 2004, the Veteran met the rating percentage criteria for TDIU under 38 C.F.R. § 4.16(a), and the evidence shows that the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment throughout the period on appeal. Medical opinions in evidence reflect that the Veteran's service-connected disabilities as likely as not render him unable to work. In March 2007, the Veteran's treatment provider noted that the Veteran's pain and other symptoms from his disabilities including his neck, right shoulder and migraines, were frequently severe enough to interfere with attention and concentration needed to perform even simple work tasks. The treatment provider noted that the Veteran could walk one city block without rest or severe pain, he could sit up to 20 minutes at one time before needing to get up, and he could stand for 15 minutes at one time before needing to sit down or walk around. The treatment provider noted that the Veteran could only sit, stand, or walk less than 2 hours total in an 8-hour working day with normal breaks. The treatment provider noted that the Veteran would need to walk around every 60 minutes for 10 minutes during an 8-hour working day. The treatment provider noted that the Veteran needed employment that would permit shifting positions at will from sitting, standing or walk, and he sometimes needed to take unscheduled breaks 5 times daily for 15 minutes each during an 8 hour working day. The treatment provider also noted that on a competitive job during an 8 hour working day, the Veteran could use his hands 20 percent of the time, fingers 40 percent of the time, and arms 10 percent of the time performing repetitive activities. See also October 2019 VA examinations. VA examiners have also opined that the Veteran's right shoulder condition made him unable to do any regular work, especially physical labor. See also May 2004, March 2006 VA examination. See also August 2016 VA examination and October 2019 VA examination. The Board acknowledges that the evidence of record indicates that the Veteran has significant nonservice-connected disabilities that clearly have resulted in functional impairment sufficiently severe to substantially impact the Veteran's ability to engage in occupational activities such as hepatitis and other gastrointestinal issues, mental health issues including chronic polysubstance use disorder prior to and after service and psychiatric issues including bipolar disorder, depressive disorder and personality disorder. The Board finds, however on balance and considering the Veteran's education and work experience, the evidence of record supports a finding that the Veteran's service-connected disabilities render him unemployable. The schedular criteria for a TDIU have been met from September 2, 2004. The Veteran reported that he last worked full-time in September 2004 while on active duty. The March 2007 private opinion indicates that the Veteran had a serious employment handicap due to his service-connected physical disabilities. Accordingly, entitlement to a TDIU is warranted and the claim is granted from September 2, 2004. (Continued on the next page) Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that the Veteran met the rating percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) from September 2, 2004, and the evidence shows that the Veteran's service-connected disability precluded him from engaging in substantially gainful employment throughout the relevant period on appeal. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.