Citation Nr: 0947890 Decision Date: 12/17/09 Archive Date: 12/31/09 DOCKET NO. 09-19 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left elbow disability. 2. Entitlement to a higher initial disability rating for a cervical spine disability that 10 percent disabling for the period from December 14, 1993 to August 16, 2001, and 60 percent for the period from August 16, 2001. 3. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU), prior to August 16, 2001. ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from October 1, 1993 to December 13, 1993. This matter comes before the Board of Veterans' Appeals (Board) from June 1994, and March 2004 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The June 1994 rating decision granted service connection for a cervical spine disability and assigned an initial 10 percent disability rating, effective December 14, 1993, and denied service connection for a left elbow disability (cubital tunnel syndrome). In the March 2004 rating decision, the RO assigned a higher disability rating for the Veteran's cervical spine disability of 60 percent for the initial rating period beginning August 16, 2001, and awarded a TDIU rating effective from August 16, 2001. A September 2008 rating decision also purported to adjudicate the question of clear and unmistakable error in the June 1994 rating decision on the issues of initial rating for cervical spine disability and denial of service connection for a left elbow disability; however, because these issues were appealed from the June 1994 rating decision, and there was no final rating decision, a July 2009 Board decision properly dismissed these purported issues of clear and unmistakable error. In July 2009, the Board advanced this case on the docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU rating earlier than August 16, 2001 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran fell on his left elbow during service in October 1993, and his left elbow disability (residuals of a chipped medial epicondyle) first manifested during active service. 2. For the initial rating period from December 14, 1993 to August 15, 2001, the Veteran's cervical spine disability was manifested by moderate limitation of motion of the cervical spine, and no more than moderate recurring attacks of intervertebral disc syndrome. 3. For the initial rating period since August 16, 2001, the Veteran's cervical spine disability has been manifested by pronounced intervertebral disc syndrome with persistent symptoms compatible with medial neuropathy with characteristic pain and demonstrable muscle spasm, and sensory deficits with little intermittent relief. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left elbow disability of residuals of a chipped medial epicondyle have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2009). 2. For the initial rating period prior to August 16, 2001, the criteria for an initial disability rating of 20 percent, but no more, for a cervical spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5290, 5293 (2001). 3. For the initial rating period from August 16, 2001, the criteria for an initial disability rating in excess of 60 percent is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & 2002); 38 C.F.R §§ 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5290, 5293 (2001 and 2003); 38 C.F.R. §§ 4.71a, DCs 5237, 5243 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). With respect to the claim for service connection for a left elbow disability, the Board finds that, given the favorable disposition of the claim, a discussion regarding VA's duties to notify and assist the Veteran with respect to this claim is not necessary. The Veteran's appeal for an initial rating for his cervical spine disability arises from his disagreement with the initial rating assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA satisfied its duties to notify the Veteran with respect to this claim. As to VA's duty to assist, VA has associated with the claims file the Veteran's service treatment records, VA treatment records, and private treatment records, and afforded him examinations with respect to his claims in April 1994, February 1997, September 2002, and July 2003. The Veteran has not indicated that he has received any other treatment for his cervical spine disability aside from that which is of record already. The Board thus concludes that there are no additional treatment records outstanding. There is additionally no evidence indicating that there has been a material change in the service-connected cervical spine disability since the Veteran was last examined. 38 C.F.R. § 3.327(a) (2009). In addition, the Veteran is currently in receipt of the highest possible rating (60 percent) for a cervical spine disability. The reports of examination are thorough and supported by the treatment records. The examination reports in this case are thus an adequate basis upon which to base a decision. For these reasons, the Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection for Left Elbow Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2009). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (2009). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for certain chronic diseases, including arthritis, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). 38 U.S.C. § 1154(a) (West 2002) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. In addition, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). The Veteran contends that his left elbow disability had its clinical onset during his active service and that he is, therefore, entitled to service connection. On examination in October 1993, prior to entry into service, the Veteran reported a history of a left elbow fracture at the age of 11 years. He stated that his arm had been casted and that the fracture had healed without any residual problems. Physical examination revealed no abnormalities of the left elbow. The assessment was "healed, no problem." Because the Veteran's entrance examination in this case did not find evidence of a left elbow disorder, and no other material evidence indicates that the Veteran had a pre-existing left elbow disability, the Veteran is entitled to a presumption of soundness under 38 U.S.C.A. §§ 1111, 1137 (West 2002). However, the Board must consider whether the presumption of soundness is rebutted by clear and unmistakable evidence. The Board finds that the presumption of soundness has not been rebutted in this case. Although emergency medical records dated prior to service in July 1984 show that the Veteran sustained a fracture of the left distal ulna, there is no evidence showing that, following the removal of his cast, he sustained any residual disability related to the left elbow injury. While the Veteran reported later in service that he had experienced intermittent tingling in his hand after his left elbow fracture, his statements regarding symptomatology are insufficient to demonstrate that a left elbow disability pre-existed his entry into service and to thereby rebut the presumption of soundness. Therefore, the Veteran is presumed to have been in sound physical condition upon entry into service. Having established that the Veteran is entitled to a presumption of soundness, the next step of the inquiry is to determine whether the Veteran developed a left elbow disability during active service. The Veteran's service treatment records reflect that he reported to sick call with complaints of left elbow pain in October 1993. He stated that he had fallen on his left elbow and left hand four days earlier and that since his fall he had experienced numbness in his left hand. Physical examination revealed no ecchymosis or swelling, although there was tenderness over the left medial epicondyle. Motor and sensory examination was intact. The left hand was nontender to palpation. X-ray examination revealed a small chip off the medial epicondyle. Three days later in October 1993, the Veteran underwent Medical Board examination in conjunction with a neck injury sustained in the same fall in which he injured his left elbow. The examining physician recommended that he be discharged for service due to failure to meet enlistment standards. Approximately one and one-half months later, in December 1993, the Veteran was discharged from service. The evidence of record shows that the Veteran fell on his left elbow during service in October 1993, and sustained a left elbow disability (residuals of a chipped medial epicondyle) first manifested during active service. Because the findings of chipped medial epicondyle were established in service, such chronic disorder of the left elbow was shown in service, and continuity of symptoms after discharge is not required to support the claim. 38 C.F.R. § 3.303(b). Nevertheless, the record also reflects that the Veteran continued to complain of left elbow pain on VA examination that was conducted a few months after service in April 1994. Records dated thereafter, in addition to numerous written statements the Veteran submitted on behalf of his claim, show continued complaints of left elbow pain. Veteran is competent to report chronic symptoms of left elbow disorder in service and a continuity of symptomatology after service since the in-service injury in October 1993 during which he chipped his left medial epicondyle in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As the Veteran's current left elbow disability has been determined to be related to an injury sustained in service, the Board finds that service connection for a left elbow disability is warranted. In this case, service incurrence has been shown by satisfactory lay evidence, consistent with the treatment the Veteran received during service, and continuity of the disability since service. Thus, the Board finds that it is at least as likely as not that the Veteran's left elbow disability was incurred in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a left elbow disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To the extent that the Veteran's left elbow disability is currently manifested by any neurological impairment, the Board notes generally that, because the Veteran is already service-connected for the neurological manifestations of a cervical spine disability affecting the left upper extremity, he would not be entitled to a separate disability rating for any neurologic impairment attributable to the left elbow specifically. A separate rating for neurological symptoms in this instance would amount to pyramiding. See 38 C.F.R. § 4.14 (2009) (both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided). Initial Rating of Cervical Spine Disability 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. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2009). 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 (2009). 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 (2007). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2009). 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 rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010. Traumatic arthritis is rated using DC 5010, which directs that the evaluation of arthritis be conducted under DC 5003, which 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, DC 5010. 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, DC 5010. 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 DC 5003. 38 C.F.R. § 4.71a, DC 5010, Note 1. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2009). The question of an extraschedular rating is a component of a claim for an increased or initial rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The criteria for rating disabilities of the spine have twice been revised during the pendency of this appeal, effective September 23, 2002; and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). VA's Office of General Counsel has interpreted that the amended rating criteria can be applied only for periods from and after the effective date of the regulatory change. The Board can apply only the prior regulation to rate a veteran's disability for periods preceding the effective date of the regulatory change. See VAOPGCPREC 3-00. The RO has considered and notified the Veteran of both the old and the new versions of the relevant criteria in the statement of the case and supplemental statements of the case. The Board's following decision results in no prejudice to the Veteran in terms of lack of notice of the regulatory revisions. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board has evaluated the Veteran's cervical spine disability under multiple diagnostic codes to determine if there is any basis for a higher initial disability rating for any period. The Veteran's cervical spine disability was initially rated as 10 percent disabling for the period from December 14, 1993 to August 15, 2001, and as 60 percent disabling for the period from August 16, 2001. Both ratings were assigned under the diagnostic criteria in effect prior to the first amendments of the regulatory criteria in September 2002. As noted above, the amended criteria in this case do not apply prior August 16, 2001, as the amended rating criteria can be applied only for periods from and after the effective date of the regulatory change. The amended rating criteria are applicable from September 23, 2002, and September 26, 2003. However, the Veteran in this case has been in receipt of a 60 percent rating since August 16, 2001. As explained below, because both the old rating criteria and the rating criteria as amended do not in this case provide for a rating in excess of 60 percent for the cervical spine, the Veteran is not entitled to a disability rating in excess of 60 percent for the period since August 16, 2001. Under the revised diagnostic criteria, the Veteran's cervical spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2009). Other applicable diagnostic codes include DCs 5242 and 5243, which pertain to degenerative arthritis of the spine and intervertebral disc syndrome, respectively. 38 C.F.R. § 4.71a, DC 5242, 5243. These diagnostic codes are also rated under the General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5242, however, may not serve as a basis for a higher initial rating in this case. The lumbar vertebrae are considered a group of minor joints that is ratable on parity with a major joint. 38 C.F.R. § 4.45. Diagnostic Code 5242 directs that degenerative arthritis of the spine be evaluated under DC 5003. See 38 C.F.R. § 4.71a, DC 5243. Diagnostic Code 5003 allows for the assignment of a 20 percent rating only where there is X-ray evidence of arthritis of two or more major joints or two or more minor joint groups. The lumbar spine may only be rated as one major joint. Regardless, the Veteran is already in receipt of a rating in excess of 20 percent under a diagnostic code that takes limitation of motion into consideration, and thus neither DC 5003 nor 5242 may serve as a basis for a higher initial disability rating in this case. 38 C.F.R. § 4.71a, DC 5003, 5242. Additionally, the General Rating Formula for Diseases and Injuries of the Spine provides for a maximum rating of 30 percent in the absence of ankylosis, and of 40 percent with unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2009). As noted above, however, the Veteran is already in receipt of a 60 percent disability rating. Accordingly, the General Rating Formula for Diseases and Injuries of the Spine may not serve as a basis for an increased rating. Neither may the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provide for a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a maximum rating of 60 percent. As the Veteran is already in receipt of a 60 percent rating for his cervical spine disability, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes may not serve as a basis for a higher initial disability rating. Finally, the Veteran is not entitled to a rating in excess of 60 percent when the orthopedic and neurologic manifestations of his cervical spine disability are rated separately. The Veteran has not been diagnosed with ankylosis of the cervical spine. As noted immediately above, the maximum rating under the General Rating Formula for Diseases and Injuries of the Spine, in the absence of ankylosis, is 30 percent. Next, the Veteran has been diagnosed with neurological manifestations affecting the left upper extremity only. There is no paralysis of the left upper extremity, and the Veteran is right handed. Even assuming arguendo that the Veteran's neurological manifestations are severe, the maximum available rating for the neurological manifestations would be 40 percent. See 38 C.F.R. § 4.124a, DCs 8514, 8515 (pertaining to impairment of the radial and median nerves) (2009). Taken together, a 30 percent rating for the orthopedic manifestations of the Veteran's cervical spine disability, and a 40 percent rating for the neurological manifestations of the Veteran's cervical spine disability results in a disability rating of 60 percent. 38 C.F.R. § 4.25 (2009). Even if the Veteran's neurological manifestations were manifested by paralysis, the combined rating would still be no more than 60 percent: two 40 percent ratings combine to be 60 percent. Id. Accordingly, the Board finds that the Veteran is not entitled to a rating higher than 60 percent under any of the diagnostic criteria in effect since August 16, 2001. Under the old diagnostic criteria in effect prior to August 16, 2001, the neurological manifestations were rated together with the orthopedic manifestations; no separate ratings for neurological manifestations were permissible. Those criteria provided for a maximum rating of 60 percent in the absence of ankylosis or fracture of the vertebrae. See 38 C.F.R. § 4.71a, DCs 5285-5295 (2001). Because the Veteran in this case has not been diagnosed with ankylosis or a fracture of the vertebrae of the cervical spine, he is not entitled to a rating in excess of 60 percent under the old diagnostic criteria for the rating period since August 16, 2001. The remaining question before the Board then is whether the Veteran is entitled to an initial rating higher than 10 percent for the initial rating period prior to August 16, 2001. Under the rating criteria in effect prior to August 16, 2001, a 20 percent rating was warranted for moderate limitation of motion of the cervical spine, and a 30 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, DC 5290 (2001). Intervertebral disc syndrome warranted a 20 percent rating when it was moderate, with recurrent attacks. A 40 percent rating was warranted for severe intervertebral disc syndrome, with recurring attacks with intermittent relief. A 60 percent rating was warranted when the intervertebral disc syndrome was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2001). Since this rating code contemplates limitation of motion, a separate rating for limitation of motion would not be warranted. VAOPGCPREC 36-97 (Dec. 12, 1997), 63 Fed. Reg. 31262 (1998). It has neither been contended nor shown that the Veteran has residuals of a fracture of the vertebra (DC 5285), complete bony fixation of the spine (DC 5286), or ankylosis of the cervical spine (DC 5287). 38 C.F.R. § 4.72, DCs 5285, 5286, 5287 (2001). Accordingly, the diagnostic codes pertaining to these disabilities are not applicable in the instant case. The Veteran underwent VA examination of the cervical spine in April 1994. At the time of the examination, he complained of neck stiffness and numbness and tingling in the left arm and hand. Physical examination revealed tenderness about the left sternocleidomastoid muscle with motion. He had full flexion to within 1 cm of his chest. Extension, lateral bending, and rotation were 50 percent of full. Clinical records dated from April 1994 to February 1997 show that the Veteran periodically complained of neck pain. Although records dated in February 1996 show that motion of the cervical spine was painful, the records dated throughout this period otherwise do not detail the ranges of motion of the Veteran's spine, or whether it was in any way restricted. On VA examination in February 1997, the Veteran complained of pain in the entire cervical spine, with particular emphasis on the left, that occurred with most activities, and especially with lifting. He stated that the pain radiated to his left upper extremity. Range of motion testing revealed flexion to 45 degrees, extension to 50 degrees, lateral bending to 40 degrees, bilaterally, and rotation to 70 degrees, bilaterally. Clinical records dated from February 1997 to November 2000 again show periodic complaints of neck pain. These records, however, do not demonstrate that the range of motion of the Veteran's cervical spine was recorded at any time. The Veteran underwent clinical evaluation of his neck in November 2000. He at that time stated that his neck pain had worsened since the original in-service injury, and that his pain was generally worse with forward bending, backward bending, sudden movements, and with upper extremity activities. He described the pain as intermittent in nature and localized to the left trapezius muscle with some radiation into the upper cervical spine. The pain was better with rest. He stated that in the morning he had increased stiffness and pain. Physical examination in November 2000 revealed a slight forward head posture, as well as slightly forward shoulders. The cervical active range of motion was within normal limits for forward bending with some slight pulling on the left posterior cervical musculature. Backward bending was within normal limits with some increased pain on the left posterior cervical musculature. Rotation to the right was within normal limits. Rotation to the left was restricted by 50 percent with increased pain. Side bending to the right was also restricted by 50 percent with increased pain on the left posterior cervical area. Side bending to the left was within normal limits. Bilateral upper extremities demonstrated normal active range of motion with increased pain to the left upper trapezius muscle at the end of flexion and abduction. Clinical records dated from November 2000 to August 15, 2001 show continued complaints of neck pain. In February 2001, he had flexion to 45 degrees, normal extension, bilateral rotation to 45 degrees, and lateral bending to 40 degrees, bilaterally, with pain. In April 2001, he had flexion decreased by 10 degrees, extension to 45 degrees, with pain, right lateral bending to 20 degrees, with pain, left lateral bending to 30 degrees, and bilateral rotation that was within normal limits. Records dated throughout this period otherwise do not demonstrate the precise ranges of motion of the cervical spine. 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. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Although this designation of normal range of motion was included as part of the revised rating criteria, it is used here for guidance purposes. On each of the occasions on which the range of motion of the Veteran's cervical spine was evaluated, the Veteran had moderate to full forward flexion of the cervical spine, moderate to full extension of the cervical spine, moderately full lateral bending of the cervical spine, and severely restricted to moderate rotation of the cervical spine. The Veteran's range of motion does not appear to have significantly worsened over time. As the Veteran's ranges of motion with respect to forward flexion, extension, and lateral bending of the cervical spine were moderate to full, the Board finds overall that the restriction in the range of motion of his neck has been no more than moderate for this period. The moderate restriction in the range of motion of his neck, however, would entitle the Veteran to a higher rating of 20 percent for the initial rating period prior to August 16, 2001. The Board also finds that a disability rating in excess of 20 percent is not warranted for the initial rating period prior to August 16, 2001. As the range of motion of his neck prior to August 16, 2001 was at no time shown to consistently be in the severely limited range, he is not entitled to a higher rating than 20 percent under Diagnostic Code 5290. 38 C.F.R. § 4.71a (2001). Throughout the period prior to August 16, 2001, the Veteran complained of pain and fatigue in his neck with activities including walking or sitting at a computer for prolonged periods, or engaging in activities involving bending or the use of his upper extremities. However, even considering the additional effects of pain on motion testing, there is no probative evidence that the neck is severely limited in motion. Thus, a rating in excess of 20 percent in not warranted on this basis either for this period. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating whether DC 5293, the code pertaining to intervertebral disc syndrome, would entitle the Veteran to a rating higher than 20 percent, the evidence for consideration includes VA examination reports and clinical records dated from April 1994 to August 2001. The evidence reflects that the Veteran consistently complained of pain radiating from his neck into his left upper extremity. On VA examination in April 1994, the Veteran complained of neck pain that radiated into his left arm and hand. Motor strength examination revealed 5/5 strength in both upper extremities. He had normal sensation with the exception of decreased sensation of the left radial sensory nerve distribution. Reflexes were 2+. The left upper extremity showed no Tinel at the wrist or elbow. Phalen and carpal tunnel compression tests were negative. There were symptoms of paresthesias of the left hand with hyperflexion of the left elbow as well as palpation of the ulnar nerve in the cubital tunnel. Records dated in February 1995 show that the Veteran complained of tingling in his left hand and left arm pain since his in-service neck injury. EMG in March 1995, however, was negative for evidence of cervical radiculopathy, neuropathy, or carpal tunnel disease. Records dated in November 1996 show that the Veteran again complained of tingling in his left arm and hand. On VA examination in February 1997, the Veteran complained of neck pain that radiated into both shoulders, but mostly the left. Physical examination revealed a slight degree of spasm in the paracervical muscles on the left, with 5/5 muscle strength. Records dated in June 1998 show that the Veteran had a history of muscle spasm in his neck. Records dated in April 1999 show that the Veteran complained of neck spasms that he had been having "for years." He was referred to physical therapy. In December 2000 and in February 2001, the Veteran complained of neck pain that radiated into his left shoulder area, and numbness and tingling in his left hand. Motor examination in February 2001 revealed 5/5 muscle strength. There was evidence of muscle spasm. Reflexes were 2+, and were symmetrical, bilaterally. In April 2001, the Veteran was observed to have neck muscle spasm that he reported had been present for the past two to three weeks. Motor examination revealed 4+/5 strength. While the evidence reflects that the Veteran complained of radiating pain on numerous occasions, the findings in the medical records, dating from April 1994 to August 14, 2001, do not support a conclusion that the Veteran had neurological symptoms that more nearly approximated severe recurrent attacks of intervertebral disc syndrome with intermittent relief. Motor examination was 4+/5 or better, and reflexes were 2+ and symmetrical, bilaterally, at all times. These manifestations are consistent with no more than moderate, recurring attacks of intervertebral disc syndrome. The Veteran is thus not entitled to a rating higher than 20 percent for his neck disability under the old schedular criteria of DC 5293 for the initial rating period prior to August 16, 2001. In sum, the Board finds that the criteria for an initial disability rating greater than 20 percent for the Veteran's cervical spine disability, for the initial rating period prior to August 16, 2001, are not met. The Board has considered whether referral for an extra- schedular rating is warranted. The service-connected cervical spine disability manifests with pain and limitation of motion, with associated neurological symptoms of sensory deficit. The functional symptoms of pain and weakness are contemplated in ratings based on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. As discussed in the preceding section, these symptoms are contemplated by the rating criteria. Hence, the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). As an initial rating case, consideration has been given to "staged ratings" (different percentage ratings for different periods of time since the effective date of service connection). Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds the weight of the credible evidence demonstrates that the Veteran's cervical spine disability has warranted a 20 percent rating but no more for the period prior to August 16, 2001, and no more than 60 percent for the initial rating period since August 16, 2001. The benefit-of- the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER Service connection for a left elbow disability is granted. An initial disability rating of 20 percent, but no more, for the period from December 14, 1993 to August 15, 2001, is granted. REMAND TDIU Prior to August 16, 2001 TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2009). In this case, the Veteran has been in receipt of a TDIU rating since August 16, 2001. In this case, the evidence of record reflects some evidence of unemployability as early as the April 1994 VA examination, at which the Veteran alleged that his service-connected cervical spine disability prevented him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this decision, the Board has granted a higher initial disability rating of 20 percent for the service-connected cervical spine disability for the initial rating period prior to August 16, 2001. By this decision, service connection has been granted for a left elbow disability, which rating and impairment, if any, will need to be considered in assessing whether a TDIU is warranted for the period prior to August 16, 2001. Because the Veteran explicitly contends that he is also entitled to a TDIU rating for the period prior to August 16, 2001, and the evidence of record reflects some evidence of unemployability at the April 1994 VA examination, the Board finds that a remand is warranted to address the claim of entitlement to a TDIU rating for the period prior to August 16, 2001. Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2009). Total disability ratings for compensation 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, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2009). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2009). Factors to be considered are the veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Additional development is needed prior to further disposition of the claim of entitlement to a TDIU rating for the period prior to August 16, 2001. The Veteran has been in receipt of a TDIU rating since August 16, 2001. He asserts that he is entitled to a TDIU rating prior to that date. In this case, the Veteran has been in receipt of a 20 percent disability rating for his cervical spine disability for the period from December 14, 1993 to August 15, 2001, and in receipt of a 60 percent disability rating for a cervical spine disability since August 16, 2001. By this decision, service connection has been granted for a left elbow disability, which rating and impairment, if any, will need to be considered in assessing whether a TDIU is warranted for the period prior to August 16, 2001. As the Veteran did not have a single disability rated at 60 percent prior to August 16, 2001, or otherwise meet the schedular requirements for a TDIU rating, the question before the Board is whether the Veteran's service-connected disabilities prohibited him from sustaining gainful employment prior to August 16, 2001, such that a TDIU rating may be assigned. In this regard, the Board finds that the record requires clarification. Clinical evidence dated since the April 1994 VA examination shows that the Veteran has not worked since his discharge from service, allegedly as a result of his cervical spine disability. While the Veteran on rare occasion attempted to work, he always discontinued his employment after a brief time as a result of neck pain. The record, however, also reflects that the Veteran has several nonservice-connected disabilities that may have impaired his ability to work. A VA examiner has not yet been asked to render an opinion as to the overall effect of the Veteran's service-connected disabilities alone on his ability to obtain and retain employment prior to August 16, 2001. In light of this, and because it appears that the Veteran has not worked since his discharge from service, the prudent and thorough course of action is to afford the Veteran an examination on remand, to ascertain the impact of his service-connected disabilities on his unemployability. Next, the record reflects that the Veteran applied for VA Vocational Rehabilitation benefits. The Veteran's Vocational Rehabilitation folder has not been associated with the claims file. As the records associated with his claim for vocational rehabilitation benefits may include evidence pertinent to the TDIU claim, such records should be obtained. 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the issue of entitlement to TDIU prior to August 16, 2001 is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Obtain the records related to the Veteran's application for vocational rehabilitation benefits and associate any vocational rehabilitation folder with the claims folder. All efforts to obtain VA records should be fully documented, and a negative response must be provided if the records are not available. 2. Schedule the Veteran for a VA social and industrial survey for the purpose of ascertaining the cumulative impact of the Veteran's service- connected disabilities on his ability to obtain and maintain substantially gainful employment for the period from April 1994 to August 16, 2001. A) The VA examiner is requested to evaluate and discuss the effect of all of the Veteran's service-connected disabilities (cervical spine and left elbow disabilities) jointly on the Veteran's employability. B) The VA examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities, rendered him unable to secure or follow a substantially gainful occupation from April 1994 to August 16, 2001. C) If it is the examiner's opinion that the Veteran's service-connected disabilities did not cumulatively render him unemployable for the period from April 1994 to August 16, 2001, the examiner should suggest the type or types of employment in which the Veteran would have been capable of engaging with his service-connected disabilities (cervical spine and left elbow disabilities) for that period, given his skill set and educational background. 3. Then, after ensuring any other necessary development has been completed, readjudicate the claim for a TDIU rating prior to August 16, 2001. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2009). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs