Citation Nr: 1315346 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-26 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy on the right upper extremity. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to an initial compensable evaluation for herpes. 6. Entitlement to a higher evaluation than 30 percent for service-connected residuals of a cervical spine injury with degenerative changes C3-6. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to June 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2008, the Veteran requested a hearing before the Board. He subsequently withdrew his request in December 2008. 38 C.F.R. § 20.704(e) This case was before the Board in December 2011 and April 2012. In April 2012, the Board vacated the order denying a compensable evaluation for herpes in its December 2011 decision. The Board also remanded the issue so that all pertinent VA records could be obtained and associated with the claims file. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran initially filed a TDIU claim in April 2003, and the RO considered the Veteran's cervical spine disability at that time. The Veteran's TDIU claim was adjudicated by the RO, and the Veteran did not appeal this issue. In May 2006, the Veteran again raised the issue of TDIU. The RO denied his claim in a February 2008 decision. The Veteran did not appeal this decision and has not raised the issue of TDIU since that time. For this reason, the Board does not find that the issue of TDIU is before the Board at this time. The issues of entitlement to service connection for headaches as secondary to a cervical spine disability has been raised in the January 2012 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for peripheral neuropathy of the upper and lower extremities and a compensable evaluation for a herpes disability 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. Prior to September 26, 2003, the Veteran's service-connected residuals of a cervical spine injury were manifested by moderate symptomatology including some pain on motion and forward flexion to 30 degrees; incapacitating episodes are not shown. 2. For the period beginning September 26, 2003, the Veteran's service-connected residuals of a cervical spine injury has been manifested by severe limitation of motion; neither favorable nor unfavorable ankylosis of the cervical spine, nor incapacitating episodes, have been shown. CONCLUSIONS OF LAW 1. Prior to September 26, 2003, the criteria for a rating in excess of 30 percent for the Veteran's cervical spine injury were not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5287, 5290 (2002). 2. For the period beginning September 26, 2003, the criteria for a rating in excess of 30 percent for the Veteran's service-connected residuals of a cervical spine injury have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5237, 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the Veteran's Administration (VA) has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in May 2003 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. A letter mailed in March 2006 explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that Dingess notice was sent to the Veteran after the initial adjudication of the claim. Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records have been obtained. Records from the Social Security Administration (SSA) were obtained. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to increased rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The Veteran was provided several VA examination for his cervical spine disability, including most recently in January 2012. The VA examination report is thorough and supported by the record. As will be discussed in greater detail below, the VA examination included an interview with the Veteran, at which point they discussed the Veteran's history and current symptoms, as well as review of the available treatment records, appropriate diagnostic testing, and a physical examination. The examination report included the information necessary to accurately rate the Veteran's cervical spine disability. The Board, therefore, finds the examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for increased rating. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Entitlement to a higher evaluation for cervical spine disability. A. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. B. Analysis Cervical spine injury with degenerative changes C3-6 prior to September 26, 2003 The Veteran filed a claim for a total disability evaluation based on individual unemployability on April 24, 2003. In January 2004, the RO adjudicated the Veteran's service-connected cervical spine injury at that time and continued an evaluation of 30 percent for the cervical spine. In January 2004, the Veteran claimed that his cervical spine disability had worsened. The RO reconsidered the Veteran's cervical spine disability in a July 2004 decision, considering old and new regulations, and continued a 30 percent evaluation. As noted above, the rating schedule for evaluating the spine changed during the pendency of this appeal. In the April 2003, the RO rated the Veteran's cervical spine injury disability under pre-amended Diagnostic Code 5290 (limitation of motion of cervical spine) and assigned a 30 percent rating. The old rating criteria under Diagnostic Code 5290, in effect prior to September 26, 2003, provided a 10 percent rating for slight limitation of cervical motion, a 20 percent rating for moderate limitation of cervical motion, and a 30 percent rating for severe limitation of cervical motion. 38 C.F.R. § 4.71a, Diagnostic Code 5290. The old rating criteria under Diagnostic Code 5287, in effect prior to September 26, 2003, provided a 40 percent evaluation for unfavorable ankylosis of the cervical spine. Effective September 23, 2002, the rating criteria for evaluation of intervertebral disc syndrome were amended to evaluate the disorder either on the total duration of incapacitating episodes resulting from intervertebral disc syndrome over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The Veteran does not have intervertebral disc syndrome during this time. In September 2002, the Veteran was evaluated by the Carolina Occupational Healthcare. Left rotation of the neck was to 30 degrees, right rotation was to 55 degrees, extension was to 20 degrees and bilateral bending was to 10 degrees. An August 2002 x-ray study noted moderately severe spondylosis of the cervical spine with moderately severe disc space narrowing at C3-4, C4-5 and C5-6 with relative sparing of the remaining disc levels. Mild to moderate facet arthropathy were seen bilaterally. An August 2002 VA examination noted the Veteran's reports of achy pain in his neck, pain when he turned his head and decreased range of motion. He noted no radiculopathy in his upper extremities. Upon examination, forward flexion was to 30 degrees, extension was to 5 degrees and the Veteran could rotate to the right 30 degrees and the left 45 degrees. The examiner noted that there was no evidence of neural involvement at the time of the examination. Based on the evidence above, the Board finds against the claim. In this regard, for this period of time, the Veteran evidenced moderate limitation of motion at most. Forward flexion was to 30 degrees upon examination in the August 2002 examination. The Veteran has already been assigned a 30 percent evaluation for severe limitation of motion under Diagnostic Code 5290 which may reflect the x-ray study showing moderate to severe spondylosis of the cervical spine and moderate to severe disc narrowing. The Board has considered whether a higher evaluation is warranted under other diagnostic codes. For instance, Diagnostic Code 5287 allows for 40 percent evaluation, but unfavorable ankylosis must be shown. During this time, the Veteran did not have ankylosis of the cervical spine. The Veteran also did not have intervertebral disc syndrome during this time. Here, neither his actual range of motion nor his functional restriction due to any factor warranted an evaluation in excess of 30 percent prior to September 26, 2003. The Board will not consider whether a separate evaluation is warranted for neurologic impairment as that issue is being remanded for further development. In light of the foregoing, the Board finds that the appellant is not entitled to a rating in excess of 30 percent for his cervical spine injury prior to September 26, 2003. Cervical strain with arthritis from September 26, 2003 Under the new rating criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5237, a cervical strain is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent rating requires that forward cervical flexion be greater than 30 degrees but not greater than 40 degrees; or, a 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. 38 C.F.R. § 4.71a . A 20 percent rating is in order when forward cervical flexion is greater than 15 degrees but not greater than 30 degrees; or when the combined range of motion of cervical motion is not greater than 170 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted when forward cervical flexion is to 15 degrees or less; or when there is favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. For VA compensation purposes, normal cervical forward flexion and backward extension is zero to 45 degrees, normal lateral flexion is zero to 45 degrees bilaterally, and normal lateral rotation is zero to 80 degrees bilaterally. 38 C.F.R. § 4.71a , Plate V. The Veteran has also been diagnosed with arthritis of the cervical spine. 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 5003, 5010 (2012). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 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, Diagnostic Code 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. Id. 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. Id. at Note 1. The words slight, moderate, 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, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The regulations for rating disabilities of the spine were revised during the pendency of the Veteran's appeal effective September 26, 2003. 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). Pursuant to VAOPGCPREC 7-2003 (Nov. 19, 2003), where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant normally applies, absent Congressional intent to the contrary. Additionally, pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so." In Kuzma v. Principi, 341 F.3d 1329 (Fed. Cir. 2003), Karnas was expressly overruled to the extent that its application would conflict with binding authority from the Federal Circuit or the Supreme Court. See Landgraf v. USI Flim Prods., have retroactive effect unless their language requires that result). Therefore, the courts have indicated that the appellant is entitled to application of the version of that which is most favorable to him and does not result in an impermissible retroactive effect. Karnas, 1 Vet. App. at 313, overruled in part on other grounds by Kuzma, 341 F.3d at 1329, Landgraf, 511 U.S. at 280. The Veteran was afforded a VA examination in March 2004. The Veteran reported stiffness upon flare-ups and that he has flare-ups every three to four days. The Veteran reported taking Daypro and muscle relaxers for pain. Upon examination, forward flexion was to 30 degrees, extension was 0 degrees, right lateral bending and rotation was to 20 degrees, and left lateral bending and rotation was to 20 degrees. There was tenderness to palpation in the cervical paraspinal musculature. The examiner diagnosed the Veteran with severe cervical spondylosis with significant limitation of motion. The March 2004 x-ray study found no definite changes since the last cervical spine x-ray study completed in August 2002 (described above). In February 2004, the Veteran reported having trouble lifting items and having things drop out of his hands. A June 2004 VA treatment record notes a diagnosis for cervicalgia that was stable with mild residuals and acute, transient cervical headaches. In July 2005, the Veteran was afforded another VA examination for his spine disability. The Veteran reported taking naprosyn for pain. The Veteran reported no episodes of bed rest prescribed by a physician or episodes of flare-ups. Upon examination, flexion was to 15 degrees with pain. Lateral flexion to the right and left was to 20 degrees without pain. Rotation to the right and left was to 30 degrees without pain. He had distal sensory loss in a glove and stocking type of pattern. He was diagnosed with advancing degenerative disk disease of the cervical spine producing more pain more often than before. The examiner also diagnosed the Veteran with past history of alcohol abuse accounting for an alcohol peripheral neuropathy. The range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance. A June 2006 treatment record noted peripheral neuropathy manifested in the hands and legs. In November 2007, the Veteran reported spasms in his neck. Upon examination of the Veteran, the physician assistant noted a neck without lymphadenopathy, nontender neck with mild pain on rotation of motion (flexion and extension). A May 2008 VA treatment record notes that the Veteran was prescribed flexeril for night spasms of his neck. A December 2008 letter by the Veteran's treating VA physician includes an opinion that the Veteran's upper extremity neuropathy was likely related to his cervical spine disease because his deep tendon reflexes were diminished on the left upper extremity suggesting neuropathic disease which the physician opined was due to his cervical spine disease. A September 2011 VA treatment record notes that his neck was supple with full rotation of motion. In January 2012, the Veteran was afforded a VA examination for his cervical spine disability. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. The Veteran reported that he was taking diclofenac and tylonol for pain. He noted that he experiences shoulder pain and stiffness. When he had a flare-up of his cervical spine disability, he would get dizzy, have a headache, lose balance and could not see. Upon examination, forward flexion was to 45 degrees or greater. Extension was 20 degrees with pain at 20 degrees. Right lateral flexion was to 20 degrees with painful motion beginning at 20 degrees. Left lateral flexion was to 20 degrees with pain at 20 degrees. Right lateral rotation was to 40 degrees with painful motion beginning at 40 degrees. Left lateral rotation is to 40 degrees with painful motion beginning at 40 degrees. The examiner answered no to the question as to whether the Veteran was able to perform repetitive-use testing but the examiner provided the results of repetitive use testing. Forward flexion was to 45 degrees or greater, extension was to 20 degrees, post-test right lateral flexion was to 20 degrees and left lateral flexion was to 20 degrees. Right lateral rotation was to 40 degrees and left lateral rotation was to 40 degrees. The examiner noted that the Veteran did not have additional limitation in range of motion following repetitive-use testing. The examiner noted that the Veteran had less movement than normal and pain on movement of his cervical spine disability. The Veteran did not have localized tenderness or pain to palpation, guarding or muscle spasm. The Veteran had normal strength in his elbows, wrists, and fingers and had no muscle atrophy. The examiner did not find that the Veteran had intervertebral disc syndrome (IVDS). VA treatment records show that the Veteran has been treated for pain due to cervical osteoarthritis with capsaicin cream and naproxen. The Board has evaluated the Veteran's spine disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). Based on the evidence presented, the Board finds that a higher rating for a cervical strain with arthritis is not warranted since September 26, 2003. In this regard, the Veteran does not have ankylosis of the entire cervical spine which would warrant a 40 percent evaluation nor does he have ankylosis of the entire spine which would warrant a 100 percent evaluation. All treatment records and VA examinations show that the Veteran has been able to move his cervical spine. Although the Veteran has degenerative arthritis of his cervical spine, the highest available evaluation under Diagnostic Code 5003 is 20 percent. The Veteran is unable to get a separate evaluation under Diagnostic Code 5003 because it would be considered pyramiding. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 . A veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the Veteran is unable to fully flex his neck due to pain from his arthritis. Therefore, the Veteran does not have separate and distinct manifestations attributable to the same injury. The January 2012 VA examination notes that the Veteran does not have intervertebral disc syndrome. Despite this, the Board has considered whether the Veteran's service-connected cervical spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. There is, however, no evidence demonstrating any episodes requiring bed rest prescribed by a physician. Indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating an intervertebral disc syndrome based on incapacitating episodes is not warranted. Extraschedular rating The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for the next higher evaluations have been met. The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned ratings are appropriate. Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. Under the applicable criteria, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 et. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected cervical spine injury are inadequate. A comparison between the levels of severity and symptomatology of the Veteran's cervical spine injury with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology for his service-connected cervical spine injury, the second and third questions posed by Thun become moot. In short, there is nothing in the record to indicate that the Veteran's service-connected cervical spine injury causes impairment over and above that which is contemplated in 30 percent disability rating that is currently assigned. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a higher evaluation than 30 percent for service-connected residuals of a cervical spine injury with degenerative changes C3-6, is denied. REMAND The Board sincerely regrets having to remand the Veteran's claim again; however, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. Herpes The Veteran's last VA examination for evaluation of herpes was in April 2008. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Since the time of the April 2008 examination, the Veteran has asserted that he has an eight percent area involving rash/sore/scar on his right leg and foot and about a three percent area involving rash/sore/scar on his left leg. He reported having sores on his genitals and lower bottom area. See June 2012 Veteran's statement. The Veteran also noted that he had been taking Valacyclovir HCL 500 MG for about two periods of time within the past two months with topical ointment such as zinc oxide ointment and hydrocortisone cream. See December 2011 Veteran's statement. Moreover, recent outpatient treatment records note that the Veteran had a rash on his legs. See March 2012 VA treatment record. It is unclear whether this rash was secondary to herpes. Several VA treatment record note that the Veteran was only using ointment for herpes because Valacyclovir was upsetting his stomach. See April 2012 VA treatment record; see also December 2009 VA treatment record. Some treatment records note that Veteran used Valacyclovir only during outbreaks. See April 2012 VA treatment record; also see January 2011 VA treatment record. It is unclear from the record if the Veteran is taking Valacyclovir and for how long. Given the claimed increase in severity, the Board finds that the April 2008 VA examination is no longer adequate for rating purposes; and that a new examination is warranted for the purpose of determining the current severity of the service-connected herpes disability. Upper and lower extremity radiculopathy In response to the December 2011 Board's remand, the Veteran was afforded an examination in January 2012 for his peripheral neuropathy complaints. The Board requested that a Peripheral Nerve Disability Worksheet be completed. The examiner mistakenly completed the Central Nervous System Worksheet instead of the Peripheral Nerve Disability Worksheet. The lack of action in this matter constitutes a procedural defect requiring a further remand, particularly in view of the prior request on remand. The United States Court of Appeals for Veterans Claims (Court) has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Also, the January 2012 examiner found that the Veteran had weakness in the thigh muscles due to degenerative disc disease of the lumbar spine, but provided no diagnosis for his thigh muscle weakness or an explanation of why a diagnosis was not appropriate. The examiner provided an opinion in January 2012 entitled "Medical Opinion 1". This opinion states that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. It is not clear from this opinion what "condition" the examiner is referring to. In this medical opinion, the examiner noted that the Veteran had a 30 percent evaluation for his cervical spine disability for limited motion and that his current complaints related to cervical osteoarthritis. It is unclear what "current complaints" the examiner is referring to. For these reasons, the Board finds the January 2012 examination for the "central nervous system" to be inadequate. Furthermore, the examiner did not provide an opinion as to whether the Veteran's thigh muscles weakness was at least as likely as not due to his military service or caused or aggravated by his service-connected disabilities. For these reasons, the Board finds that the Veteran should be afforded a new VA examination for peripheral neuropathy of his upper and lower extremities. Accordingly, the case is REMANDED for the following action: 1. Any pertinent VA or other inpatient or outpatient treatment records should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be informed. 2. The Veteran must then be afforded a VA dermatologic examination by a dermatologist in order to accurately determine the current severity of his service-connected genital herpes. To the extent possible, the VA examination should be scheduled during an active disease process. Following completion of the examination and in accordance with the latest AMIE worksheets for rating diseases or disabilities of the skin, the examining dermatologist is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected genital herpes. More specifically, the dermatologist must specifically comment regarding the percentage of the Veteran's entire body and exposed skin areas affected, as well as whether "systemic therapy" is required for control of the Veteran's service-connected genital herpes. Should it be determined that such "systemic therapy" is, in fact, required, an additional comment is requested regarding the required duration of any "systemic therapy," to include whether such treatment has been required for a total duration of six weeks or more (but not constantly) during the past 12 months. In this regard, the dermatologist must address whether the oral use of Valacyclovir constitutes "systemic therapy." The dermatologist must explain why or why not. The examiner must also evaluate any scars which are result of the Veteran's herpes outbreaks. A complete rationale must be provided for any opinion offered. Moreover, the claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. 3. The Veteran must then be afforded a VA examination for peripheral neuropathy for his claimed upper and lower extremity radiculopathy. All indicated tests and studies should be performed, including nerve conduction studies, and clinical findings should be reported in detail. The claims file must be made available to the examiner for review prior to examination. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After a thorough review of the evidence and physical examination, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) the Veteran has a definitive nerve disorder of the upper or lower extremities related to his service-connected disabilities. If any, specific diagnoses should be provided in this regard. The examiner should also opine as to whether it is at least as likely as not that the Veteran's nerve disorder is related to the Veteran's military service, to include exposure to Agent Orange. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean within the realm of possibility, rather that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The examination report must include well-reasoned rationale for all opinions and conclusions provided The examiner should comment on the July 2005 VA examination which notes peripheral neuropathy due to a past history of alcohol abuse. The examiner should also comment on the December 2008 opinion by Dr. P., that the Veteran's left upper extremity neuropathic disease is related to his cervical spine disability. 4. The Veteran is to be notified that it is his responsibility to report for the requested examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It should also be indicated whether any notice sent was returned as undeliverable. 5. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. The RO should then readjudicate the Veteran's claim for a compensable evaluation for service-connected genital herpes, and entitlement to service connection for upper and lower extremities. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs