Citation Nr: 1136868 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 09-11 105A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for a chronic lumbar strain with L4-5 lumbar disc protrusion and degenerative disc disease at multiple levels (previously evaluated as myofascial lower back pain). 2. Entitlement to a disability rating in excess of 20 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6 for the appellate period prior to July 5, 2006. 3. Entitlement to a disability rating in excess of 30 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6 for the appellate period as of July 5, 2006. 4. Entitlement to a disability rating in excess of 10 percent for minimal degenerative changes of the thoracic spine. 5. Entitlement to a disability rating in excess of 50 percent for post-concussive syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1993 to July 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Cleveland, Ohio; Atlanta, Georgia; and New Orleans, Louisiana. The Veteran initially filed a claim for service connection for chronic myofascial lower back pain in July 1999, and the RO granted that claim in an April 2000 rating decision. In March 2002, the Veteran filed a new claim for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. The Board remanded that claim in February 2005, and the RO, in the April 2005 rating decision currently on appeal, granted service connection for the Veteran's claimed DDD of the lumbar spine, and determined that the rating for that disability was encompassed by the rating for the previously service-connected chronic myofascial lower back pain. In a March 2009 rating decision, the RO increased the Veteran's disability rating for her chronic lumbar strain with L4-5 lumbar disc protrusion and DDD at multiple levels (previously evaluated as myofascial lower back pain) to 40 percent, effective February 29, 2000. The Veteran initially filed a claim for service connection for chronic myofascial neck pain in July 1999, and the RO granted that claim in an April 2000 rating decision. In March 2002, the Veteran filed a new claim for entitlement to service connection for DDD of the cervical spine. In an October 2002 rating decision, the RO increased the Veteran's rating for her service-connected cervical strain with muscle spasms (formerly chronic myofascial neck pain) to 20 percent as of the March 18, 2002 date of claim, and denied her claim for entitlement to service connection for DDD of the cervical spine. The Board remanded the claim for service connection in February 2005, and the RO, in the April 2005 rating decision currently on appeal, granted service connection for the Veteran's claimed DDD of the cervical spine, and determined that the rating for that disability was encompassed by the rating for the previously service-connected cervical strain with muscle spasms. In a March 2009 rating decision, the RO increased the Veteran's disability rating for her chronic cervical strain with muscle spasms and multilevel DDD with disc bulging at C5-6 from 20 percent to 30 percent, effective July 5, 2006. The Veteran initially filed a claim for service connection for minimal degenerative changes of the thoracic spine in July 1999, and the RO granted that claim in an April 2000 rating decision. In March 2006, and again in March 2007, the Veteran filed a claim for entitlement to service connection for a thoracic spine disorder (including DDD and scoliosis), which the RO construed in its September 2007 rating decision-the subject of this appeal-as a claim for entitlement to an increased rating for the Veteran's thoracic spine disability. In the September 2007 rating decision, the RO continued the Veteran's 10 percent disability rating for her thoracic spine disability. The Veteran initially filed a claim for service connection for post-concussive syndrome in July 1999, and the RO granted that claim in an April 2000 rating decision. In March 2007, the Veteran filed a claim for entitlement to an increased rating for her post-concussive syndrome. In September 2007, the RO issued a rating decision-the subject of this appeal-in which it continued the Veteran's 50 percent disability rating for her service-connected post-concussive syndrome. As these ratings do not represent the highest possible benefits, the issues have remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge (Travel Board hearing); a copy of the hearing transcript is associated with the record. The issue of entitlement to service connection for left leg sciatic nerve damage, to include as secondary to her service-connected lumbar spine disability, was raised by the Veteran in April 2009, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran also raised the issue of entitlement to an earlier effective date for her service-connected lumbar spine disability in both July 2009 and April 2010, and that issue also has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. The issues of entitlement to a disability rating in excess of 40 percent for a chronic lumbar strain with L4-5 lumbar disc protrusion and degenerative disc disease at multiple levels (previously evaluated as myofascial lower back pain); entitlement to a disability rating in excess of 30 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6 for the appellate period as of July 5, 2006; entitlement to a disability rating in excess of 10 percent for minimal degenerative changes of the thoracic spine; and entitlement to a disability rating in excess of 50 percent for post-concussive syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the appellate period prior to July 5, 2006, the Veteran's cervical spine limitation of motion is best characterized as moderate. 2. For the appellate period prior to July 5, 2006, the Veteran's cervical spine has a forward flexion of at minimum 37.5 degrees, with consideration of pain and repetitive motion. There was no evidence of cervical spine ankylosis of any kind. 3. For the appellate period prior to July 5, 2006, the Veteran did not have incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. 4. For the appellate period prior to July 5, 2006, the Veteran did not have neural compression, nerve root abnormality, or radiculopathy associated with the cervical spine. CONCLUSION OF LAW Prior to July 5, 2006, the criteria for a rating in excess of 20 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7; 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003) (effective prior to September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Veteran Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A June 2002 letter, provided to the Veteran before the April 2005 rating decision, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since it informed the Veteran of what evidence was needed to establish her claim, what VA would do and had done, and what evidence she should provide. The letter also informed the Veteran that it was her responsibility to help VA obtain medical evidence or other non-government records necessary to support her claim. The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The Veteran was provided with such notice in June 2006. The Federal Circuit has held that VA's duty to notify, codified at 38 U.S.C.A. § 5103(a), does not require it to provide notice of alternative diagnostic codes, or to solicit evidence of the impact of the Veteran's claimed disability on his daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). With respect to VA's duty to assist, the RO has obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran. The Veteran's service treatment records, VA treatment records, and available private treatment records have been obtained. The Veteran has not reported, and neither does the evidence of record show, that she is in receipt of Social Security Administration (SSA) disability benefits for her claimed disability. Therefore, it is not necessary for VA to have requested such records. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Thus, the Board considers the VA's duty to assist satisfied. Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. Laws and Regulations Pertaining to Claims for Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. 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. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. With respect to disabilities involving the musculoskeletal system, the Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part, which becomes painful on use, must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. It is the intention of the VA Schedule for Rating Disabilities (Rating Schedule) to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Analysis: A Disability Rating in Excess of 20 Percent for a Chronic Cervical Strain with Muscle Spasms and Multilevel Degenerative Disc Disease with Disc Bulging at C5-6 for the appellate period prior to July 5, 2006 As discussed above, the appellate period began on March 18, 2002-the date on which the Veteran filed her claim. The Veteran was granted a disability rating of 20 percent as of that date in an October 2002 rating decision. In a March 2009 rating decision, the RO continued the Veteran's 20 percent rating for the appellate period prior to July 5, 2006. Under Diagnostic Code 5290, evaluations from 10 to 30 percent are available for limitation of motion of the cervical spine. Limitation of motion of the cervical spine warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a maximum of 30 percent when shown to be severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (in effect prior to September 2003). Pursuant to the General Rating Formula for Diseases and Injuries of the Spine in effect as of September 2003, a 20 percent disability rating applies where the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is 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 disability rating applies where the Veteran has forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating applies where the Veteran has unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating applies where the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating applies where the Veteran has unfavorable ankylosis of the entire spine. Pursuant to Note 1, any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Neurological conditions are rated under 38 C.F.R. § 4.124a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires (1) bed rest prescribed by a physician, and (2) treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5003, where the limitation of motion of the spine is noncompensable under Diagnostic Codes 5235-5243, a disability rating of 10 percent applies when there is degenerative arthritis with x-ray evidence of involvement of two or more major joints, or two or more minor joint groups. A disability rating of 20 percent applies when there is x-ray evidence of degenerative arthritis with involvement of two or more major joints, or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Under Diagnostic Code 5010, arthritis, due to trauma, and substantiated by X-ray findings, is rated as degenerative arthritis. In July 2002, a private physician, F.C., M.D., diagnosed the Veteran with mild DDD of the cervical spine, greatest at C5-6, with minimal bulge, based on magnetic resonance imaging (MRI) testing. VA provided the Veteran with an examination of his spine by an outside physician in July 2002. The examiner reviewed the July 2002 MRI report described above. The examiner found no signs of radiculopathy, and neurological examination of the upper extremities was within normal limits with regard to motor function, sensation, and reflexes. Neurological examination of the lower extremities did not involve any decreased sensation or decreased reflexes attributable to the cervical spine. The Veteran had cervical spine flexion to 65 degrees, extension to 40 degrees, left lateral bending to 30 degrees, right lateral bending to 40 degrees, left rotation to 75 degrees, and right rotation to 80 degrees. The Veteran had pain with motion (characterized as "0"), but no evidence of fatigue, weakness, lack of endurance, or incoordination. The examiner found no evidence of ankylosis of the cervical spine. The examiner noted that x-rays showed straightening of the cervical spine with a suggestion of very slight kyphosis at C4-C6 which may be positional in nature; the x-rays were otherwise normal. The examiner diagnosed the Veteran with a cervical strain with muscle spasms and multilevel degenerative disc disease, with some disc bulging most severe at C5-6. In May 2003, another private physician, W.L.Y., M.D., found that the Veteran had some cervical degenerative disease and spondylosis. In September 2004, another private physician, H.F., M.D., administered an MRI of the Veteran's cervical spine. The physician found that the Veteran had no neural compression or nerve root abnormality. He further found that the Veteran's "degenerative disc disease is as expected for age with minimal disc bulges at C2-3 and C3-4, which are associated with degeneration." The physician further found a possible syrinx at C6-7, although he noted that "this could be just a mild central canal dilatation as is really suggested here on the axial sequences." The Veteran underwent another MRI test in October 2004, and the private physician, K.K., M.D., diagnosed the Veteran with mild cervical spondylosis. VA provided the Veteran with a Compensation and Pension (C&P) examination of her cervical spine in March 2005. The examiner reviewed the Veteran's claims file, and performed the range of motion (ROM) measurements with a goniometer. The examiner found that the Veteran had cervical spine forward flexion from 0 to 50 degrees, extension from 0 to 20 degrees, left and right rotation from 0 to 70 degrees, and left and right lateral bending from 0 to 20 degrees, with pain. The Veteran had a 25 percent decrease in ROM of the neck on repetitive use. A Spurling's test (for cervical radiculopathy) was negative, and the examiner found that the Veteran's neurologic examination was intact for both her upper and lower extremities. Radiographic testing showed straightening with slight reversal of the cervical curvature, suggesting paraspinal muscle spasm and/or positioning; the cervical spine radiographs were otherwise negative. The VA examiner diagnosed the Veteran with chronic cervical strain with multilevel disk degenerative changes with disk bulging at C5-6. The examiner noted that the Veteran stated that she had no incapacitating episodes during the last 12 months, and that she does not take any time off from work for her neck. In September 2005, H. F., M.D., performed another MRI test on the Veteran and diagnosed her with a syrinx from C3-4 to C4-5; a second syrinx from C5-6 to C6-7; a moderate-sized left paracentral disk protrusion at C7-T1; and mild disk bulges at C2-3 and C5-6. The physician found no central or lateral stenosis. In October 2005, another private physician, B.M., M.D., performed another MRI test on the Veteran and found a slightly prominent central canal at C5-C6. He further found that the previously described disk bulge at C2-C3 appeared somewhat less significant. He noted that the Veteran's foramina appear normal, her cervical spine maintains a normal contour otherwise, and her cervical cord maintains signal intensity. In November 2005, R.B.F., M.D., opined that, based on MRI results, there was no evidence of infection or neoplasm in the Veteran's cervical cord. He further opined that "the syrinx is of no consequence at this point." The Board finds that the evidence of record supports a continuance of the 20 percent rating for the appellate period prior to July 5, 2006 under 38 C.F.R. § 4.71a, Diagnostic Code 5290 (in effect prior to September 2003). A higher evaluation is not warranted because the Veteran's limitation of motion of the cervical spine does not qualify as severe; indeed, in July 2002 the Veteran had cervical spine flexion to 65 degrees, extension to 40 degrees, left lateral bending to 30 degrees, right lateral bending to 40 degrees, left rotation to 75 degrees, and right rotation to 80 degrees. As noted above, a July 2002 private physician characterized the Veteran's DDD of the cervical spine as mild, and characterized his disc bulge as minimal. Although the July 2002 examiner diagnosed the Veteran with a cervical strain with muscle spasms and multilevel degenerative disc disease, with some disc bulging most severe at C5-6, the term "severe" described disc bulge rather than limitation of range of motion, and was only used relative to the Veteran's other disc bulges. As further evidence thereof, a September 2004 private physician characterized the Veteran's disc bulges as "minimal." Consequently, the Board finds that the Veteran's limitation of motion of the cervical spine is at most moderate. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (in effect prior to September 2003). The Board finds that the evidence of record supports a continuance of the 20 percent rating for the appellate period prior to July 5, 2006 under 38 C.F.R. § 4.71a, Diagnostic Code 5237. A higher evaluation is not warranted because the most probative evidence of record shows that the Veteran does not have forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. Even taking into account the 25 percent loss of ROM on repetitive motion-as determined by the March 2005 VA examiner-the Veteran's forward flexion of the cervical spine is to 37.5 degrees [50 x 0.75 = 37.5; 0.75 is used because where the Veteran lost 25% of his motion, he retains 75%]. Additionally, as determined by the July 2002 examiner, there is no evidence of ankylosis of the cervical spine. The Veteran's thoracolumbar spine is rated separately. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca, 8 Vet. App. 202 (1995). Even with the consideration of pain on movement, the Veteran's service-connected disorder does not fall within the criteria warranting a higher evaluation than described above. A rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is inapplicable because the most probative evidence of record shows that the Veteran did not have a period of at least four weeks over a twelve month span of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. As noted above, the March 2005 VA examiner recorded that the Veteran reported having no incapacitating episodes in the previous 12 months. A separate rating based on neurological manifestations for the appellate period prior to July 5, 2006 is also not for application because the March 2005 VA examiner found that a Spurling's test was negative, and the Veteran's neurologic examination was intact for both her upper and lower extremities. Likewise, in September 2004, the Veteran's private physician found that the Veteran had no neural compression or nerve root abnormality. The July 2002 examiner likewise found no signs of radiculopathy, and neurological examination of the upper extremities was within normal limits with regard to motor function, sensation, and reflexes. The July 2002 neurological examination of the lower extremities also did not involve any decreased sensation or decreased reflexes attributable to the cervical spine. Because these findings constitute competent medical opinions, no separate neurological rating for the Veteran's cervical spine disability is warranted. 38 C.F.R. §§ 3.159(a)(1); 4.124a. Based upon the guidance of the Court in Hart, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate; however, in the present case, no further staged ratings are warranted by the Veteran's symptomatology. The Board has considered the issue of whether the Veteran's chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6 for the appellate period prior to July 5, 2006, standing alone, presents an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111, 115-116. First, the threshold factor for extra-schedular consideration is that there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the Rating Schedule to determine whether the Veteran's disability picture is adequately contemplated by the Rating Schedule. 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. Id. at 115. However, if not adequately contemplated by the rating criteria, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. See also 38 C.F.R. § 3.321(b)(1). If either of the factors of step two is found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. In this case, because the rating criteria reasonably describe the claimant's disability level and symptomatology, the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate. ORDER A disability rating in excess of 20 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6 for the appellate period prior to July 5, 2006 is denied. REMAND Additional development is needed prior to further consideration of the Veteran's claims for entitlement to a disability rating in excess of 40 percent for a chronic lumbar strain with L4-5 lumbar disc protrusion and degenerative disc disease at multiple levels (previously evaluated as myofascial lower back pain); entitlement to a disability rating in excess of 30 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6; entitlement to a disability rating in excess of 10 percent for minimal degenerative changes of the thoracic spine; and entitlement to a disability rating in excess of 50 percent for post-concussive syndrome. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2008); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995). As an initial matter, the Board notes that the Veteran's most recent VA neurological examination was provided in July 2009, and her most recent spine and post-concussive syndrome examinations were provided in November 2008. At her March 2011 Board hearing, the Veteran testified that her post-concussive symptoms have gotten worse. Id. at p. 15. She further testified that her symptoms have increased throughout her entire spine. Id. at p. 18. Notably, the Veteran also stated that she would be available to undergo new examinations. Id. at p. 23. Where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating); cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). In this case, the Veteran's most recent pertinent VA examinations took place in July 2009 and November 2008, approximately 26 and 33 months ago, respectively. Moreover, while some additional medical evidence has been added to the record since those examinations, it does not adequately address the level of impairment of her disabilities for rating purposes. Furthermore, as noted above, the Veteran has alleged that her post-concussive and spinal symptoms are worsening. Consequently, the Agency of Original Jurisdiction (AOJ) should schedule the Veteran for a VA examination of her spine, by an orthopedic physician, to determine the current severity of her disabilities. The AOJ should also schedule the Veteran for a VA examination of her post-concussive syndrome, by an appropriate specialist, to determine the current severity of her disability. The orthopedic examiner must also note any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse, as well as any such changes on repetitive motion. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The orthopedic examiner should also determine whether the Veteran has radiculopathy associated with her service-connected cervical, thoracic, and/or lumbar spine disabilities, as documented by her VA and private treatment records, and as the Veteran reported at her March 2011 Board hearing. Id. at pp. 11-13. If so, for each portion of the spine with which radiculopathy is associated, the examiner should name the nerve(s) involved, determine whether it is best characterized as neuropathy or neuritis, and ascertain whether it is best described as slight, moderate, moderately severe, or severe. The orthopedic examiner should also ascertain whether the Veteran's reported cervical spine cysts, containing fluid-filled sacs, are present. See March 2011 Board hearing at pp. 3-6. If so, the examiner should provide a diagnosis thereof, and opine as to whether it is at least as likely as not that the cysts were caused or aggravated in service, or as a result of her service-connected cervical spine disability. The examiner should provide a rationale for any conclusion reached. Additionally, on remand, the AOJ is asked to obtain all of the medical records showing treatment for the Veteran's service-connected post-concussive syndrome and cervical, thoracic, and lumbar spine disabilities since February 2010, which are not already of record. Significantly, the Veteran requested that VA obtain certain additional VA and private treatment records at her March 2011 Board hearing. Id. at pp. 20-21. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all health care providers that have treated or evaluated her for her service-connected post-concussive syndrome and cervical, thoracic, and lumbar spine disabilities since February 2010, and attempt to obtain records from each health care provider that she identifies who might have available records, if not already in the claims file. If records are unavailable and future attempts to retrieve the records would be futile, notations to that effect should be made in the claims folder. 2. After completion of the above, schedule the Veteran for a VA orthopedic examination of the service-connected cervical, thoracic, and lumbar spine disabilities, by an orthopedic physician, to determine the current severity of those disabilities. The claims file should be made available to, and be reviewed by, the examiner in connection with the examination, and the examiner's report should so indicate. All tests and studies, to include range of motion testing, should be performed. The examiner should note any additional functional loss, including more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse, as well as any such changes on repetitive motion. The examiner should also determine whether the Veteran has radiculopathy associated with her service-connected cervical, thoracic, and lumbar spine disabilities. For each portion of the spine with which radiculopathy is associated, the examiner should name the nerve(s) involved, determine whether it is best characterized as neuropathy or neuritis, and ascertain whether it is best described as slight, moderate, moderately severe, or severe. The examiner should also ascertain whether the Veteran's reported cervical spine cysts, containing fluid-filled sacs, are present. If so, the examiner should provide a diagnosis thereof, and opine as to whether it is at least as likely as not that the cysts were caused or aggravated in service, or as a result of her service-connected cervical spine disability. The examiner also should discuss the extent to which the service-connected cervical, thoracic, and lumbar spine disabilities affect the Veteran's activities of daily living, as well as her ability to secure or maintain employment. The rationale for any opinions and all clinical findings should be given in detail. If it is not possible to provide an opinion without resulting to mere speculation, the examiner should state the reason(s) why. 3. After completion of 1., above, schedule the Veteran for a VA examination of the service-connected post-concussive syndrome, by an appropriate specialist, to determine the current severity of that disability. The claims file should be made available to, and be reviewed by, the examiner in connection with the examination, and the examiner's report should so indicate. All tests and studies, to include range of motion testing, should be performed. The examiner should discuss the extent to which the service-connected post-concussive syndrome affects the Veteran's activities of daily living, as well as her ability to secure or maintain employment. The rationale for any opinions and all clinical findings should be given in detail. If it is not possible to provide an opinion without resulting to mere speculation, the examiner should state the reason(s) why. 4. After completion of the above, the AOJ should readjudicate the claims for entitlement to a disability rating in excess of 40 percent for a chronic lumbar strain with L4-5 lumbar disc protrusion and degenerative disc disease at multiple levels (previously evaluated as myofascial lower back pain), entitlement to a disability rating in excess of 30 percent for a chronic cervical strain with muscle spasms and multilevel degenerative disc disease with disc bulging at C5-6, entitlement to a disability rating in excess of 10 percent for minimal degenerative changes of the thoracic spine; and entitlement to a disability rating in excess of 50 percent for post-concussive syndrome. If any determination remains unfavorable to the Veteran, she and her representative should be provided with a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board for further review. No action by the Veteran is required until she receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may have adverse consequences on her claim. 38 C.F.R. § 3.655 (2011). The Veteran and her representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2010). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs