Citation Nr: 21032448 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-26 070 DATE: May 27, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for cervical degenerative disc disease and intervertebral disc syndrome (IVDS) (neck condition) is denied; entitlement to a rating of 30 percent is granted effective August 11, 2011. Entitlement to an initial rating in excess of 20 percent for lumbosacral and thoracic degenerative disc (back condition) is denied; entitlement to a rating of 40 percent is granted effective August 6, 2009. Entitlement to an initial rating of 20 percent for radiculopathy of the right upper extremity is granted effective March 24, 2009; however, a rating in excess of 50 percent is denied after April 16, 2013. Entitlement to an initial rating of 20 percent for radiculopathy of the left upper extremity is granted effective March 24, 2009; a rating of 30 percent is granted effective October 27, 2014. Entitlement to an initial rating of 10 percent for radiculopathy of the right lower extremity is granted effective March 24, 2009; a rating of 20 percent is granted effective February 6, 2015. Entitlement to an initial rating of 10 percent for radiculopathy of the left lower extremity is granted effective March 24, 2009; a rating of 20 percent is granted effective February 6, 2015. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective December 7, 2009. FINDINGS OF FACT 1. Prior to August 11, 2011, the Veteran's neck condition manifested in reduced forward flexion of the cervical spine, but not to 15 degrees or less. Since August 11, 2011, the Veteran's neck condition manifested in reduced forward flexion of the cervical spine to 15 degrees or less, but without ankylosis. 2. Prior to August 6, 2009, the Veteran's back condition manifested in reduced forward flexion of the lumbar spine, but not to 20 degrees or less. Since August 6, 2009, the Veteran's back condition manifested in reduced forward flexion of the lumbar spine to 20 degrees or less, but without ankylosis. 3. Since March 24, 2009, the Veteran has experienced mild incomplete paralysis of her right upper extremity. Since April 16, 2013, the Veteran has experienced severe incomplete paralysis of her right upper extremity, but no greater. 4. Since March 24, 2009, the Veteran has experienced mild incomplete paralysis of her left upper extremity. Since October 27, 2014, the Veteran has experienced moderate incomplete paralysis of her left upper extremity, but no greater. 5. Since March 24, 2009, the Veteran has experienced mild incomplete paralysis of her bilateral lower extremities; Since February 6, 2015, the Veteran has experienced moderate incomplete paralysis of her bilateral lower extremities, but no greater. 6. Effective December 7, 2009, the Veteran's service-connected disabilities have prevented her from obtaining and maintaining employment consistent with her occupational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a neck condition have not been met; the criteria for a rating of 30 percent have been met effective August 11, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 2. The criteria for an initial rating in excess of 20 percent for a back condition have not been met; the criteria for a rating of 40 percent have been met effective August 6, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 3. The criteria for an initial rating of 20 percent for radiculopathy of the right upper extremity have been met effective March 24, 2009; however, the criteria for a rating in excess of 50 percent after April 16, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8510. 4. The criteria for an initial rating of 20 percent for radiculopathy of the left upper extremity have been met effective March 24, 2009; the criteria for a rating of 30 percent have been met effective October 27, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8510. 5. The criteria for an initial rating of 10 percent for radiculopathy of the right lower extremity have been met effective March 24, 2009; the criteria for a rating of 20 percent have been met effective February 6, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for an initial rating of 10 percent for radiculopathy of the left lower extremity have been met effective March 24, 2009; the criteria for a rating of 20 percent have been met effective February 6, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8520. 7. The criteria for entitlement to a TDIU have been met effective December 7, 2009. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1985 to April 1988. In June 2015, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran's claims were before the Board in August 2015 wherein they were remanded to the agency of original jurisdiction (AOJ) for additional development. The development was completed and the Veteran's claims were returned to the Board for adjudication. However, due to a procedural defect, the Veteran's claims were remanded again in April 2020. The claims were most recently before the Board in July 2020 wherein they were again remanded for additional development. This development was completed, and the claims have returned to the Board. Increased Rating The Veteran contends that she should be entitled to higher ratings for her service-connected neck and back conditions. Further, she contends that the associated radiculopathy of her bilateral upper extremities and bilateral lower extremities should be service-connected at an earlier date and have higher ratings. The Board notes that the Veteran has a myriad of physical and psychological problems and there are voluminous medical records as a result. Given that the focus of the Board's inquiry is on whether either an (1) earlier or (2) higher rating is warranted for her service-connected disabilities, the Board will limit is discussion to the records that evince whether such earlier or higher ratings are warranted. However, the entire medical record has been reviewed in rendering this decision. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In this case, separate evaluations are warranted as explained below. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In addition to the general criteria for increased ratings claims, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). At varying points in the record, the Veteran's neck and back disabilities include a diagnosis of intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Board has considered the medical records and does not find evidence of incapacitating episodes, even if the term "incapacitating" may be used in the medical record. Further, to the extent that there were such episodes, bed rest has not been ordered by a physician. Thus, the Board will consider the Veteran's neck and back conditions under the General Rating Formula for Diseases and Injuries of the Spine. Further, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, at Note 1. The radiculopathy disabilities are discussed below. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his neck or back disabilities. 1. Entitlement to an initial rating in excess of 20 percent for a neck condition Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Evidence The Veteran is in receipt of an initial 20 percent rating. Thus, in order for the Veteran's rating to increase to 30 percent, there must be evidence of forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine; or the functional equivalent of either. The Board finds the VA examinations and private medical to be the most probative evidence of record related to the Veteran's neck disability. Thus, the records are given great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While there are VA treatment records regarding the Veteran's back, there is little VAMC evidence that provides a numerical equivalent to range of motion lost. The Veteran has been afforded several VA examinations during the period on appeal. The first came in July 2009. The Veteran reported neck pain at 5/10 and her cervical range of motion was limited to 30 degrees of forward flexion. The Veteran's next examination came on August 11, 2011. The Veteran reported constant neck pain rated at "7 out of 9" in severity, with constant stiffness. The pain and stiffness contributed to fatigability and lack of endurance. She reported flares 2-3 times weekly, that lasted 2-3 days and her activity was limited during these episodes. Upon range of motion testing, the Veteran's cervical forward flexion was limited to 15 degrees with pain. At the Veteran's March 2014 examination, the Veteran reported similar symptoms. Her range of motion was 30 degrees forward flexion with pain and 20 degrees after repetitive use with pain. The examiner also stated that there would be an "additional 10 degrees range of motion loss on flexion when the [neck] is used repeatedly over time." The Board interprets this finding to mean that forward flexion would be limited an additional 10 degrees after repetitive use. Thus, the forward flexion would be limited to 10 degrees. While the remaining VA examinations of record do not document forward flexion at 15 degrees or less, there were findings of very limited range of motion. The October 2014 VA examination found the Veteran's range of motion to be basically full, but also stated that her range of motion was "extremely restricted" due to pain. The January 2021 VA examiner again found the Veteran's range of motion to be almost full, but the Veteran could not perform repetitive use testing. Further, the private records support such severe limitations in the Veteran's forward flexion. In June 2012, her neck was limited to 20 degrees forward flexion. In July and December 2012, her flexion was limited to "3 fingerbreadths above chest, with severe pain." The records further describe stiffness, guarding, spasms, and incredible pain. Given the above, the Board finds that the Veteran's forward flexion of her lumbar spine was either limited or functionally limited to 15 degrees or less effective August 11, 2011. Prior to that date, the Veteran's forward flexion was greater than 15 degrees, even though she had symptoms of guarding or spasms. However, at no time was the evidence of unfavorable ankylosis such that a higher rating is warranted. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion, but the Board has also considered the Veteran's histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and limitation of function. Despite the Veteran's contention of a greater degree of limitation on her neck condition, the disability ratings assigned herein indicate a significant impact on her functional ability. Such disability evaluations assigned by VA recognizes her painful motion. The critical question in this case, however, is whether the problems she has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not meet a higher rating than those assigned herein. For the foregoing reasons, effective August 11, 2011, the Veteran's neck disability warrants a 30 percent rating. However, prior to that date, a 20 percent rating is warranted. The Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 20 percent; and for a rating in excess of 40 percent from January 14, 2021 The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. As discussed above, because there is no evidence of incapacitating episodes, the Veteran's disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under than formula, a 20 percent rating is warranted 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Evidence The Veteran is in receipt of an initial 20 percent rating. Thus, in order for the Veteran's rating to increase to 40 percent, forward flexion must be 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or the functional equivalent of either. In order for the Veteran to warrant a rating in excess of 40 percent, there would need to be evidence of unfavorable ankylosis. The Board finds the VA examinations and private medical to be the most probative evidence of record related to the Veteran's neck disability. Thus, the records are given great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While there are VA treatment records regarding the Veteran's back, there is little VAMC evidence that provides a numerical equivalent to range of motion lost. The Veteran has been afforded several VA examinations during the period on appeal. The first came in July 2009. The Veteran reported back pain at 4/10. She did not use an assistive device or brace. Her lumbar range of motion was 40 degrees with pain after 40 degrees. The Veteran's private physician submitted a letter dated September 17, 2009. See document labeled, "Buddy/Lay Statement", received September 25, 2009. The doctor stated that the Veteran had forward flexion limited to approximately 20 to 30 degrees on examination at the last visit. In reviewing the Veteran's private medical records, there is a medical record dated September 2, 2009 that contains the same language as the letter, but that medical record does not contain any range of motion findings. The record prior, dated August 6, 2009, also does not contain any range of motion findings, however the doctor does make the finding that the Veteran was "unable to flex at the waist or extend." See document labeled, Medical Treatment Record-Government Facility, received April 30, 2013, pages 49-50 of 79. Therefore, the Board finds that the Veteran's forward flexion was limited to 30 degrees or less since August 6, 2009. The Board's finding is not inconsistent with the other evidence of record. The July 2009 VA examiner did not render an opinion about lost motion during flare-ups. The Veteran's private physician found her forward flexion to be limited to "maybe 10 degrees" in November 2011. The VA examination in October 2014 found forward flexion limited to 30 degrees with pain and the examination in February 2015 found her forward flexion limited to 20 degrees, with pain. The Veteran was provided with a wheelchair in September 2015 through the VA and continued to use it until the end of the period on appeal. There is another note of 10 degrees forward flexion from her private physician in January 2016. Therefore, the record substantiates that during flares, the Veteran's forward flexion was limited to 30 degrees or less since August 6, 2009. However, prior to this date, the Veteran's flexion was not so limited. For the remainder of the period on appeal, the Board does not find that there is evidence of unfavorable ankylosis such that a rating in excess of 40 percent would be warranted. The medical record contains an August 2011 VA examination that may suggest that the Veteran has separate thoracic and lumbar spine impairments. Where the record contains medical evidence distinguishing between impairments of the thoracic and lumbar spine, a separate rating may be warranted. See Langdon v. Wilkie, 32 Vet. App. 291 (2020). However, there is insufficient probative evidence separating the impairments of each spine, so the Board has evaluated the thoracolumbar spine as a whole. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). Despite the Veteran's contention of a greater degree of limitation on her back condition, the disability rating assigned herein indicates a significant impact on her functional ability. Such disability evaluations assigned by VA recognizes her painful motion. The critical question in this case, however, is whether the problems she has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. For the foregoing reasons, the preponderance of the evidence supports a rating of 40 percent since August 6, 2009, but no earlier, and no higher. The Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Radiculopathy Claims In addition to the neck and back ratings, the schedule directs that any associated objective neurological abnormalities, such as radiculopathy, are to be evaluated separately under an appropriate diagnostic code. See "General Rating for Diseases and Injuries of the Spine, at Note 1. Preliminarily, the Board notes that the Veteran has complained of radiculopathy of the bilateral upper extremities and bilateral lower extremities since the beginning of the period on appeal. See document labeled, Medical Treatment Record-Government Facility, received June 4, 2009, page 71 of 82. As the Veteran's neck and back have been on appeal since March 24, 2009, at the very least, the Veteran is entitled to a radiculopathy rating as of that date. The Board will address the relative severity of her conditions below. Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. The Veteran's radiculopathy of the bilateral upper extremities are rated under Diagnostic Code 8510 for paralysis of the upper radicular group. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity when all shoulder and elbow movement is lost or severely affected, but the hand and wrist movement is not affected. 38 C.F.R. § 4.124a. The Veteran's right arm is her major extremity. The Veteran's sciatic radiculopathy of the bilateral lower extremities is rated under Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is for application where there is complete paralysis of the sciatic nerve (i.e., the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). 3. Right upper extremity (major) rated at 50 percent since April 16, 2013 4. Left upper extremity (minor) rated at 20 percent since April 16, 2013 The Board finds the VA examinations and private medical to be the most probative evidence of record related to the Veteran's neck disability. Thus, the records are given great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At the Veteran's July 2009 VA examination, the examiner found the Veteran's bilateral upper extremities to be neurologically intact but assessed radiculopathy. At the Veteran's August 2011 VA examination, no radiculopathy was noted. At the Veteran's March 2014 VA examination, the Veteran had mildly reduced strength in her right upper extremity, with mild subjective symptoms. The examiner assessed mild radiculopathy of the bilateral upper radicular and middle radicular groups. At the Veteran's October 27, 2014 VA examination, the Veteran had mild to moderate loss of strength in her right upper extremity and mild loss of strength in her left upper extremity. She reported moderate subjective symptoms in her right upper extremity, but none in her left. The examiner assessed moderate radiculopathy of the upper radicular and middle radicular groups in her right upper extremity, but nothing on her left. At the Veteran's February 2015 VA examination, the Veteran had reduced bilateral finger strength She had decreased senses in her shoulder and inner/outer forearm arms. Her subjective symptoms were identical bilaterally and ranged from mild to moderate. The examiner assessed moderate radiculopathy of the middle radicular groups bilaterally. At the Veteran's most recent VA examination in January 2021, the Veteran's strength, reflexes, and sensory examinations were within normal limits. Her subjective symptoms were identical bilaterally and ranged from mild to moderate. The examiner assessed mild bilateral radiculopathy of the middle and lower radicular groups. The January 2021 examiner also gave the opinion that since March 24. 2009, the Veteran's symptoms have been mild because while the subjective symptoms were moderate to severe, the objective symptoms reflect mild symptomology. The Board has considered the remainder of the medical record regarding symptomology of radiculopathy. The Veteran has certainly reported pain and subjective feelings of weakness, reduced senses, and paresthesias/dysesthesias, as well as numbness. However, there is little objective testing to corroborate the Veteran's level of radiculopathy. In this regard, the Board notes again that disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. After considering the above, the Board finds the most severe symptomology of the Veteran's bilateral upper extremities to be at the February 2015 examination. However, the remainder of the examinations have mild to moderate objective findings. Given this, prior to April 16, 2013, the Veteran's radiculopathy of the bilateral upper extremities is mild in severity and a 20 percent rating is warranted for each upper extremity. The Veteran is in receipt of a 50 percent rating reflecting severe incomplete paralysis of the right upper extremity since April 16, 2013. To warrant a higher rating, the evidence would need to establish complete paralysis manifested by shoulder and elbow movement is lost or severely affected, but the hand and wrist movement is not affected. The Board does not find this level of disability to be met or approximated. Thus, a rating that represents complete paralysis has not been met. The Veteran's is in receipt of a 20 percent rating reflecting mild incomplete paralysis of the left upper extremity since April 16, 2013. The October 27, 2014 and February 2015 examiners assessed moderate radiculopathy. The March 2014 and the January 2021 examiners assessed mild radiculopathy. In giving the Veteran the benefit of the doubt, the Board finds that as of October 27, 2014, the radiculopathy of the left upper extremity was moderate in severity. However, the Board's analysis does not end there. The March 2014 rating decision that assessed the initial ratings for the Veteran's radiculopathy of the bilateral upper extremities used Diagnostic Code 8510. In so doing, it stated: "Although the upper radicular group and middle radicular group nerves were shown to be affected, only one evaluation is allowable in this case. This rating is based on the highest rated nerve." This statement is incorrect: so long as the symptoms of individual nerve groups can be separated out, separate ratings may be assigned. Here, however, even the examiners had trouble separating out the Veteran's symptoms and the nerve groups affected. At varying times, the examiners assessed radiculopathy of the upper, middle, and lower radicular groups, at times finding that symptoms affected two such groups at once. The upper radicular group affects the shoulder and elbow (Diagnostic Code 8510), the middle radicular group affects the mid-arm and wrist (Diagnostic Code 8511), and the lower radicular group affects the hand and wrist (Diagnostic Code 8512). After a review of the record, the Board finds that the Veteran's complaints mainly involve pain radiating down her arm, but her fingers were not consistently affected. Given this, the Board will continue rating the Veteran's disability under Diagnostic Code 8510. The percentage ratings for Diagnostic Codes 8510, 8511, and 8512 are identical so that the Veteran will not be prejudiced by lower ratings. However, without a clear differentiation of symptoms, the Board will not assign separate ratings for different radicular groups. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). To the extent that the medical records purport to show that the Veteran's hands and fingers were affected, this symptomology did not last long enough for the Board to grant (and stop) a separate compensable rating. See Medical Treatment Record-Non-Government Facility, received October 13, 2014, 75 pages. The Board does not find a greater degree of impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy or paralysis (i.e. objective findings) that would warrant a higher rating. Despite the Veteran's contention of a greater degree of limitation on her radiculopathy conditions, the disability ratings assigned herein indicate a significant impact on her functional ability. Such disability evaluations assigned by VA recognizes her symptoms. The critical question in this case, however, is whether the problems she has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not exceed those found herein. Thus, in consideration of the above, the Board finds that initial 20 percent ratings are warranted for radiculopathy of the bilateral upper extremities affecting the upper radicular group under Diagnostic Code 5210, effective March 24, 2009. For the right upper extremity, a rating in excess of 50 percent is denied since April 16, 2013. As of October 27, 2014, the radiculopathy of the left upper extremity was moderate in severity and a 30 percent rating is warranted. In granting the rating, the Board finds the benefit of the doubt doctrine to be applicable as explained above. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Radiculopathy of the right lower extremity rated at 10 percent since June 10, 2014 6. Radiculopathy of the left lower extremity rated at 10 percent since June 10, 2014 The Board finds the VA examinations and private medical to be the most probative evidence of record related to the Veteran's neck disability. Thus, the records are given great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The July 2009 VA examiner found the Veteran's bilateral lower extremities to be within normal limits. The October 2014 examination found the Veteran's bilateral lower extremities to have mildly reduced strength bilaterally, positive straight leg raises, and mild subjective symptoms. The examiner assessed mild sciatic radiculopathy bilaterally. The February 6, 2015 examiner found the Veteran to have a bilateral mild reduction in strength, decreased sensory testing, and mild to moderate subjective testing. The examiner assessed moderate sciatic radiculopathy. Per VA medical records, in March 2018, the Veteran's legs felt cold to the touch and she could barely move her legs. The Veteran injured her foot in July 2018 and her nerve pain worsened after that. A January 2019 lumbar EMG was within normal limits. But records in April 2020 demonstrate that her main complaints were nerve related and she could not tolerate compression socks due to paresthesias/neuritis. The Veteran's most recent VA examination was in January 2021. She had mild bilateral reduced strength, decreased senses in her right foot, and mild to moderate subjective symptoms. The examiner assessed mild sciatic radiculopathy. The January 2021 examiner also gave the opinion that since March 24. 2009, the Veteran's symptoms have been mild because the objective symptoms reflect mild symptomology, even if the subjective symptoms reflect greater complaints. The Board has considered the remainder of the medical record regarding symptomology of radiculopathy. Similar to her upper extremities, the Veteran has certainly reported pain and subjective feelings of weakness, reduced senses, and paresthesias/dysesthesias, as well as numbness. However, there is little objective testing to corroborate the Veteran's level of radiculopathy. In this regard, the Board notes again that disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. After considering the above, the Board finds the most severe symptomology of the Veteran's bilateral lower extremities to be at the February 6, 2015 examination when moderate radiculopathy was assessed. The remainder of the examinations have mild to moderate objective findings. Thus, prior to this date, the Veteran's radiculopathy of the bilateral lower extremities are mild in severity and a 10 percent rating is warranted for lower upper extremity. In giving the Veteran the benefit of the doubt, the Board finds that as of February 6, 2015, the radiculopathy of the bilateral lower extremities was moderate in severity and a 20 percent rating is warranted. The Board does not find a greater degree of impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy or paralysis (i.e. objective findings) that would warrant a higher rating. Despite the Veteran's contention of a greater degree of limitation on her radiculopathy conditions, the disability ratings assigned herein indicate a significant impact on her functional ability. Such disability evaluations assigned by VA recognizes her symptoms. The critical question in this case, however, is whether the problems she has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not exceed those found herein. Thus, in consideration of the above, the Board finds that initial 20 percent ratings are warranted for radiculopathy of the bilateral lower extremities effective March 24, 2009. Thereafter, effective February 6, 2015, a 20 percent rating is warranted. In granting the rating, the Board finds the benefit of the doubt doctrine to be inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU 7. Entitlement to a TDIU prior to February 15, 2011 The Veteran contends that her service-connected disabilities preclude employment. As explained in the August 2015 Board Remand, the Veteran's claim was considered to have been raised by the record as "part and parcel" of her underlying increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). The Veteran was granted a TDIU effective February 15, 2011. However, the Veteran contends that she has been unemployable prior to that date. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran twice applied for a TDIU: in June 2009 and June 2014. In her first application, the Veteran stated that she had stopped working in October 2008. In her second application, the Veteran stated she stopped work in November 2009. However, her employer stated that she worked from September to December 2009. See VA 21-4192 Request for Employment Information in Connection with Claim for Disability, received October 30, 2014. The Board finds that the Veteran last worked December 7, 2009. In her June 2014 application, she checked the box "no" in response to the question "did you leave your last job because of your disability?" Her employer confirmed this and stated she abandoned her job and last worked December 7, 2009. Turning to the first application, while the Veteran's TDIU claim is on appeal from March 2009, the Board does not find the Veteran was unemployable during this time (from March 2009 to September 2009) because she was looking for work and believed herself to be employable, even though her overall rating may have met the percentage requirement for a TDIU. An August 2009 addendum VA opinion stated the following: "the Veteran has done sedentary work fulltime within the past year and is not working because she cannot find work." However, from December 7, 2009 forward, she has not engaged in substantial gainful activity and has not pursued it. Factors to be considered in determining whether unemployability exists are the Veteran's education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total (100 percent) disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). A total disability rating may be assigned under a Diagnostic Code where the Diagnostic Code associated with a disability prescribes a 100 percent disability rating. Additionally, regulations provide other methods by which TDIU may be awarded. TDIU may be assigned to a veteran who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities," provided that he has received a disability rating of 60 percent or greater, or if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40 percent, and the combined disability rating for all disorders is at least 70 percent. Since December 7, 2009, the Veteran is in receipt of the following ratings: 40 percent for her back; 20 percent each for her neck, radiculopathy of the right upper extremity, and radiculopathy of the left upper extremity; 10 percent rating each for each knee and each lower extremity affected by radiculopathy (with a bilateral factor of 5.8 percent under 38 C.F.R. § 4.26). The Veteran has noncompensable (0 percent) ratings for her migraine and sinusitis disabilities. Given these ratings, the Veteran has total rating of 80 percent. As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a TDIU. Turning to the functional impact of the Veteran's service-connected disabilities, the Board first finds that the Veteran does not have any limitations related to her migraine and sinusitis disabilities. As for her other musculoskeletal disabilities, virtually every aspect of her body is affected. The Veteran contends, and the private records and VA examinations bear out, that the Veteran's sitting, standing, and walking are affected. Her ability to lift objects and manipulate them with her arms would be affected. Further, the Veteran is on pain medication due to her conditions and the records indicate poor sleep, which, when combined together, would impact her ability to concentrate, attend, focus, and adapt to her workplace. While the Veteran's social functioning is not impacted, the remainder of her limitations would produce great limitations on her ability to maintain employment. Considering the evidence of record, even though the Veteran has no psychiatric limitations, the Board finds that she would have functional limitations that would preclude even low skill jobs, because the Veteran does not have the ability to attend, concentrate, adapt, or focus on these low skill jobs. Thus, the Board finds that the Veteran is unemployable and her service-connected disabilities have rendered her unable to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (in a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator); see also Gilbert, supra. Therefore, the Veteran is entitled to a TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.