Citation Nr: 21041532 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 494 DATE: July 9, 2021 ORDER Entitlement to a rating higher than 10 percent for a neck disability prior to January 6, 2020, and a rating higher than 20 percent thereafter, is denied. Entitlement to a rating higher than 20 percent for left upper extremity cervical radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 6, 2020, the Veteran's neck disability was manifested by complaints of pain, flexion of the cervical spine was to 45 degrees and a combined range of motion of the cervical spine greater than 170 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups; it was not manifested by ankylosis or intervertebral disc syndrome with incapacitating episodes. 2. After January 6, 2020, 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 Veteran is right hand dominant. 4. Throughout the entire period on appeal, the Veteran's left upper extremity radiculopathy manifested by moderate symptoms analogous to no more than moderate incomplete paralysis of the upper, middle and lower radicular nerve groups. 5. The most probative evidence indicates that the Veteran's service-connected disabilities do not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for a neck disability prior to January 6, 2020, and a rating higher than 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 2. Throughout the entire period on appeal, the criteria for an increased rating of 30 percent for the Veteran's service-connected left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Codes 8510-8513. 3. The criteria for a TDIU have not been satisfied. 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 on active duty from June 1984 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision. In November 2018 the Board remanded the appeal for additional development, which has been completed. In a rating decision in June 2020, the Agency of Original Jurisdiction (AOJ) increased the Veteran's rating for the neck disability to 20 percent disabling, effective January 6, 2020. Because the increased rating does not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Ratings 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. Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that degenerative arthritis 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. 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. 1. Entitlement to a rating higher than 10 percent for a neck disability prior to January 6, 2020, and a rating higher than 20 percent thereafter 2. Entitlement to a rating higher than 20 percent for left upper extremity cervical radiculopathy The veteran seeks higher disability ratings than those currently assigned for his service-connected neck and left upper extremity radiculopathy. 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 for a 10 percent rating 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. A VA examiner in January 2013, noted a diagnosis of posterior neck strain. On VA examination in October 2013, the examiner noted a diagnosis of cervical spurring of facet joint. The Veteran reported neck pain that radiated down his left arm. He endorsed flare-ups if when sitting or sleeping in certain positions. Forward flexion was to 45 degrees, extension to 35 degrees, right lateral flexion was to 25 degrees, left lateral flexion was to 20 degrees, right lateral rotation was to 75 degrees, and left lateral rotation was to 60 degrees. There was no additional loss of motion or function with repetitive use testing. There was no guarding or muscle spasm of the cervical spine. Muscle strength, reflexes and sensory examination showed no abnormalities. Imaging studies showed spurring of the left facet joint at C4/5, with ossification in the nuchal ligament posterior to the spinous process of C5. There was no IVDS. A VA peripheral nerves examination contained a diagnosis of radiculopathy of the left upper extremity. The Veteran had pain radiating from the cervical spine into the medial portion of the hand and fingers. There was constant moderate pain, paresthesias and/or dysesthesias and numbness. Strength was 4/5 in the left elbow with no muscle atrophy. Reflexes were reduced. There was decreased sensation in the hand and fingers. There were no trophic changes. The examiner noted mild incomplete paralysis of the lower radicular, radial and ulnar nerve groups. Imaging studies in June 2014 showed degenerative changes in the cervical spine. On VA examination in January 2020, the Veteran complained of neck pain that had increased in frequency and intensity. He rated the pain as 4/10, and 6/10 at its worst. He treated his symptoms with medication, including Flexeril, Mobic, anti-inflammatory cream, as well as with rest and a cervical pillow. He reported difficulty sleeping, keeping neck in same position longer than five minutes and turning his neck side-to-side. Forward flexion was to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 50 degrees, with repeated use over time and during flare-ups. There was no additional loss of motion or function with repetitive use testing. There was guarding and/or muscle spasm of the cervical spine that did not result in abnormal gait or abnormal spinal contour. Muscle strength, reflexes and sensory examination showed no abnormalities. There was no muscle atrophy. There was no ankylosis. There was IVDS of the cervical spine that did not require bed rest prescribed by a physician in the preceding 12 months. He regularly used a cervical pillow for support. Passive range of motion of the spine was not performed as it was not feasible to do in a safe and reasonable manner. There was no objective evidence of pain in a non-weight bearing position at rest, but there was pain on weight bearing. The examiner noted left upper extremity radiculopathy manifested by moderate intermittent pain, paresthesias and/or dysesthesias and numbness. The examiner found moderate incomplete paralysis of the upper, middle and lower radicular groups. No other neurological abnormalities were noted. While the VA examiner in January 2020 found evidence of IVDS of the cervical spine, 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. 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. The Board finds that prior to January 6, 2020, the Veteran is not entitled to a rating in excess of 10 percent. To warrant a 20 percent rating, there must be evidence of limitation of flexion 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. 38 C.F.R. § 4.71a. During this period, the recorded range of motion findings show the Veteran's flexion was noted, at worst to, at worst, greater than 45 degrees. There was no evidence that his forward flexion of the cervical spine was limited to 30 degrees due to pain on repetition, or that 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. There was no evidence that the Veteran experienced additional limitation due to pain on repetition and his gait was normal. 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. Therefore, the Board finds that prior to January 6, 2020, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. After January 6, 2020, 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, 30 degrees with pain, on repetitive movements over time 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 examiner 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 addition to considering the orthopedic manifestations of cervical spine 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. Here, the AOJ granted a separate 20 percent disability rating for left upper extremity radiculopathy, under Diagnostic Code 8513. 38 C.F.R. § 4.124a. No other associated neurological impairment is demonstrated. Concerning radiculopathy of the upper extremity, disability ratings for the nerves, are found at 38 C.F.R. § 4.124a. There are several potentially applicable Diagnostic Codes for peripheral neuropathy. Diagnostic Code 8510 applies to the upper radicular group, Diagnostic Code 8511 to the middle radicular group, and Diagnostic Code 8512 to the lower radicular group. Diagnostic Code 8513 applies to complete or incomplete paralysis of all radicular groups. 38 C.F.R. § 4.124a. Diagnostic Codes 8514-8519 apply to complete or incomplete paralysis of the specific nerves: musculospiral (radial) nerve (Diagnostic Code 8514), median nerve (Diagnostic Code 8515), ulnar nerve (Diagnostic Code 8516), musculocutaneous nerve (Diagnostic Code 8517), circumflex nerve (Diagnostic Code 8518), and long thoracic nerve (Diagnostic Code 8519). The Note to these diagnostic codes states that "[c]ombined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings." Id. Diagnostic Code 8510 provides that mild incomplete paralysis of the upper radicular group is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Diagnostic Code 8511 provides ratings for paralysis of the middle radicular group of nerves. Under that Code mild incomplete paralysis is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the middle radicular group, with adduction, abduction, and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8511. Diagnostic Code 8512 provides ratings for paralysis of the lower radicular group of nerves. Diagnostic Code 8512 provides that mild incomplete paralysis is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the lower radicular group with all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand) is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8512. Diagnostic Code 8513 provides ratings for paralysis of all radicular groups of nerves. Diagnostic Code 8513 provides that mild incomplete paralysis is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 70 percent disabling on the major side and 60 percent disabling on the minor side. Complete paralysis of all radicular groups is rated as 90 percent disabling on the major side and 80 percent disabling on the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Throughout the appeal, the Veteran reported subjective symptoms of moderate paresthesias and/or dysesthesias, pain and numbness for the left upper extremity. The Veteran reported problems with the left upper extremity, including weakness, tingling and limited lifting. While the VA examiner in 2013 noted mild incomplete paralysis of the left upper extremity, symptoms and findings concerning his left upper extremity radiculopathy remained consistent throughout the appeal and the clinical findings on the VA examination reports in 2013 and 2020, more or less mirrored each other. Significantly, the VA examiner in January 2020 diagnosed moderate incomplete paralysis of the upper, middle and lower radicular groups. In consideration of the foregoing evidence, the Board hereby finds that, for the entire period on appeal, the Veteran's service-connected left upper extremity radiculopathy warrants an increased evaluation of 30 percent, but no greater, under Diagnostic Code 8513 for moderate incomplete paralysis of the left (minor) upper extremity. See 38 C.F.R. § 4.124a. In so finding, the Board also finds that the evidence of record establishes that the Veteran is right-hand dominant, based upon the Veteran's reports to the in 2013 and 2020 VA examiners. As lay statements made to medical providers in the context of medical treatment carry a high level of credibility, due to the risk of misdiagnosis inherent in making a false statement, the Board finds the Veteran's statements regarding his right hand dominance to be competent and credible. See White v. Illinois, 502 U.S. 346, 355-56 (1992). Accordingly, the Board finds that the Veteran's left hand is non-dominant, or minor, and shall therefore be evaluated as a minor extremity. See 38 C.F.R. § 4.69. The Board further finds that the Veteran is competent to describe the observable, non-medical symptoms of his left hand disability, such as the nature, severity, and location of his pain, numbness, tingling, and loss of use of his fifth finger, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and that the Veteran's lay statements regarding his left hand nerve symptoms are credible because such statements have been consistent with each other and throughout the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). However, in so finding, the Board also finds that an evaluation in excess of 30 percent is not warranted as the Veteran's reports indicate that his pain, numbness, and tingling is moderate rather than severe, and the 2013 and 2020 VA examination reports found evidence of moderate pain, moderate paresthesias and/or dysesthesias, and moderate numbness. See 38 C.F.R. § 4.124a. This finding is further supported by the January 2020 VA examination report finding of moderate rather than severe incomplete paralysis, and the fact that muscle strength, reflexes and sensory examination showed no abnormalities, nor was there muscle atrophy. The Board has also considered whether the Veteran's service-connected left upper extremity radiculopathy warrants the assignment of an additional or a higher rating under other diagnostic codes at any point during the period on appeal. See Schafrath, 1 Vet. App. at 595. However, because the record contains no evidence of neuritis or neuralgia, the Board finds that no additional disability ratings are warranted in this case. See 38 C.F.R. § 4.124a. Accordingly, and in consideration of the foregoing evidence, the Board finds that, for the entire period on appeal, an initial increased evaluation of 30 percent, but no greater, under Diagnostic Code 8513 for moderate incomplete paralysis of the left (minor) upper extremity, is warranted in this case. The Board also finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to a disability rating higher than 10 percent for the neck disability prior to January 6, 2020, or a rating higher than 20 percent thereafter. 38 U.S.C. § 5107(b); Gilbert, supra. 3. Entitlement to a TDIU The Veteran claims entitlement to a TDIU. In a December 2016 statement in support of his claim, the Veteran reported that last worked full time in 2010, after which he started working part-time until November 2014. Reportedly, he quit at that time because due to his service-connected neck, shoulder and arm disabilities because he could not stand sit or lay for long periods of time. He added that his left upper extremity would become numb and he experienced a throbbing sensation. 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. 38 C.F.R. § 4.16. 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 his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. 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). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); VAOPGCPREC 75-91 (Dec. 27 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disabilities sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, service connection is in effect for: Obstructive sleep apnea, evaluated as 50% disabled; A neck disability, evaluated as 10 % disabling prior to January 6, 2020, and 20% disabled thereafter; A left upper extremity radiculopathy, evaluated as 30% disabled; A left knee disability, based on limitation of motion, evaluated as 10% disabled; A left knee disability, based on ligamentous laxity, evaluated as 10% disabled; A right knee disability, evaluated as 10% disabled; A left shoulder disability, evaluated as 10% disabled; A left ankle disability, evaluated as 10% disabled; Gastroesophageal reflux disease (GERD), evaluated as 10% disabled; Right knee scarring, evaluated as 0% disabled; Tinnitus, evaluated as 10% disabled; and, Hearing loss, evaluated as 0% disabled. The Veteran's combined disability evaluation was 80% prior to January 6, 2020, and 90% thereafter. Therefore, the schedular criteria for TDIU were met. 38 C.F.R. § 4.16. Accordingly, what remains to be determined is whether the functional impairment associated with his service-connected disabilities are of such nature and severity as to preclude substantially gainful employment. In his June 2015 VA form 21-8940 (Veterans Application for Increased Compensation based on Unemployability) the Veteran asserted that his service-connected neck disability with left upper extremity radiculopathy, shoulder disability, and the bilateral knee disorders, rendered him unable to work. He reported that he had not worked full time since June 2008. Reportedly from July 2008 to November 2014, he was self-employed part-time as a hearing specialist. The evidence shows that prior to July 2008, he worked for a hearing aid company as a hearing tester and salesperson. The Veteran indicated that he had completed two years of college and attained an advanced degree as a hearing aid specialist. On VA examination in October 2013, the Veteran reported that the neck disability interfered with work because he couldn't sit at a desk for long periods of time. The examiner found that the Veteran's left upper extremity radiculopathy had no impact on his ability to work. On VA examination in January 2020, the Veteran reported he had difficulty sleeping, keeping his neck in the same position longer than five minutes and turning the neck side-to-side during flare-ups which could last one hour or up to four days. It is notable that the examination was conducted while the Veteran was experiencing a flare-up in symptoms and while there was reduced range of motion, the Veteran retained significant function and mobility. Pertaining the left shoulder disability, a VA examiner in January 2013 opined that the Veteran was unable to lift overhead without increased neck pain. He was capable of sedentary work. The Veteran underwent a VA shoulder examination in February 2015. The examiner determined that the Veteran's left shoulder disability negatively impacted his ability to work due to significant pain with lifting his left arm, as well as intermittent numbness and tingling associated with left shoulder impingement. On VA examination in January 2020, the Veteran reported difficulty lifting items greater than 25 pounds, and lifting his left arm overhead during flare-ups which could last anywhere from one hour up to two to four days. As a result, it took him longer to complete tasks due to flare-ups covering periods of one hour or two to three days at a time. As above, the examination was conducted while the Veteran was experiencing a flare-up in symptoms and while there was reduced range of motion, the Veteran retained more than half of the normal shoulder range of motion in the left shoulder (minor extremity) with at least 4/5 strength and no muscle atrophy or ankylosis. On VA knee examination in January 2013, the VA examiner found that the Veteran was capable of sedentary work, and was in fact working in a sedentary capacity. The Veteran, however, could not squat, run or climb stairs without increasing knee pain that limited function. The Veteran underwent a VA knee examination in February 2015. The examiner opined that the Veteran's bilateral knee conditions negatively impacted his ability to work due to significant pain with standing greater than 15 minutes. Regarding the Veteran's hearing problems, a VA examiner in January 2013, determined that the Veteran's hearing loss was productive of difficulty hearing others at times and his tinnitus affected his sleep. Concerning the Veteran's sleep apnea, an October 2019 sleep study showed mild positional obstructive sleep apnea treated with CPAP. The evidence also shows that he managed his GERD with medication. Here, the evidence did not show, nor did the Veteran claim, that obstructive sleep apnea, the left ankle disability, GERD and right knee scarring, had any impact on the Veteran's employability. After thoroughly reviewing the evidence of record, the Board finds that a TDIU is not warranted as the evidence does not support a finding that the Veteran's service-connected disabilities rendered the Veteran unable to obtain substantial gainful employment. In sum, the objective medical evidence provided by multiple VA examination reports and treatment providers, did not support a finding that the Veteran was precluded from obtaining or maintaining substantially gainful employment. While the Veteran's neck disability with left upper extremity radiculopathy, left shoulder disability and bilateral knee disorders, may result in some limitations affecting lifting, prolonged standing or sitting, squatting or climbing stairs, which preclude the ability to perform a full range of work, they do not render him unemployable; rather, it simply limits the Veteran to sedentary occupations. Here, the VA examiners reviewed the Veteran's medical records, completed physical and functional evaluations of the Veteran, and articulated how the objective clinical findings would or would not result in physical limitations, as required by 38 C.F.R. § 4.1 ("[f]or the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition."). It was clear that each examiner considered these limitations and their opinions are consistent with some physical limitations. The weight of the probative evidence of record does not contradict the findings of the VA examiners. Notably, to the extent the Veteran's left shoulder and left upper extremity radiculopathy restrict his ability to lift, the evidence shows that the Veteran is right hand dominant. The Veteran's statements have been carefully considered (in fact, without consideration of the problems the Veteran has cited, there would be little object medical basis for the current findings). In this regard, while there is some evidence that supports the claim, there is also, alternatively, highly significant evidence against the current findings. In fact, there is also some evidence that does not support the current ratings. The Board concludes that the medical findings on examination and treatment notes are of greater probative value than the Veteran's allegations regarding the severity of his service-connected disabilities and their impact on his employability. Overall, there is significant evidence that provides evidence against this claim that the Board cannot simply discount. The Board observes that the disability ratings currently assigned recognize that the impairment due to his service-connected disabilities makes it difficult to obtain and keep employment (that the Veteran has problems is not in dispute, 80% and 90% disability ratings will, by definition, cause the Veteran many problems). However, the ultimate question in determining entitlement to a TDIU is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, there is no indication from the record that the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, either singularly or jointly. As the preponderance of the evidence is against the claim for entitlement to a TDIU, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 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.