Citation Nr: 0208693 Decision Date: 07/30/02 Archive Date: 08/02/02 DOCKET NO. 96-07 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Counsel INTRODUCTION The appellant served on active duty from September 1970 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. That rating decision, in pertinent part, granted service connection and assigned a noncompensable rating for the appellant's service-connected straightening of the cervical lordotic curve with narrowing of C5-C6 disc space and spondylosis. Thereafter, the appellant filed a timely substantive appeal. In August 1997, the RO issued a rating decision granting an increased disability rating of 10 percent, effective March 1992, for the appellant's service-connected straightening of the cervical lordotic curve with narrowing of C5-C6 disc space and spondylosis. The Board remanded this issue in April 1998 for further development. It has returned for appellate review. The Board also remanded another issue in April 1998, which was entitlement to service connection for service connection for right carpal tunnel syndrome. Subsequently, the RO granted service connection for right carpal tunnel syndrome, and that issue is no longer on appeal. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Since March 1, 1992, the veteran's chronic degenerative disc disease at L4-5 was manifested by moderate limitation of motion, moderate intervertebral disc syndrome with recurring attacks, with no evidence of severe symptoms. CONCLUSION OF LAW The criteria for an initial 20 percent disability rating for straightening of the cervical lordotic curve with narrowing of C5-C6 disc space and spondylosis have been met. 38 U.S.C.A. 1155 (West 1991), Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5290, 5293 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Introduction The veteran asserts that an evaluation in excess of 10 percent for service-connected cervical spondylosis with radiculopathy is warranted. Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001) (VCAA). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 112 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that the VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5103A; see Karnas v. Derwinski, 1 Vet. App. 308 (1991). Regulations implementing this law were also recently promulgated. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Among the changes in the law brought about by the VCAA is a heightened duty to assist the veteran in developing evidence in support of a claim. Such assistance includes identifying and obtaining evidence relevant to the claim, and affording the veteran a VA rating examination unless no reasonable possibility exists that such assistance would aid in substantiating the veteran's claim. See 38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,620 (to be codified as amended at 38 C.F.R. § 3.102). The Board has reviewed the veteran's claim in light of the VCAA and concludes that while the RO did not necessarily fully comply with the new notification requirements at the time the veteran's claim was filed, a substantial body of lay and medical evidence was developed with respect to the veteran's claim. The RO's statement and supplemental statements of the case, as well as the Board's April 1998 remand, clarified what evidence would be required to establish an evaluation in excess of 10 percent for his service-connected cervical spondylosis with radiculopathy. The veteran responded to the RO's communications with additional evidence and argument, curing (or rendering harmless) any earlier notification omissions that the RO may have made. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VA O.G.C. Prec. 16-92, para. 16 (57 Fed. Reg. 49,747 (1992)) ("if the appellant has raised an argument or asserted the applicability of a law or [Court] analysis, it is unlikely that the appellant could be prejudiced if the Board proceeds to decision on the matter raised"). The VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,620 (to be codified as amended at 38 C.F.R § 3.102). This obligation was satisfied by the requested examination reports of record, the most recent ones dated in March 2000. The Board is satisfied that all relevant facts have been properly and sufficiently developed and that the veteran will not be prejudiced by proceeding to a decision on the basis of the evidence currently of record. Under the applicable criteria, disability evaluations are determined by comparing the symptoms the veteran is presently experiencing for a particular service-connected disability with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The current level of disability, however, is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that there is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the veteran's claim for a rating in excess of 10 percent for service-connected cervical spondylosis with radiculopathy is from an original rating in November 1993. The veteran filed his notice of disagreement in February 1994, the RO issued the statement of the case in December 1995, and the veteran filed his timely substantive appeal in January 1996. The distinction may be important in determining the evidence that can be used to decide whether the original rating on appeal was erroneous and in determining whether the veteran has been provided an appropriate statement of the case. Fenderson at 126. With an initial rating, the RO can assign separate disability ratings for separate periods of time based on the facts found. Id. With an increased rating claim, "the present level of disability is of primary importance." Francisco at 58. This distinction between disagreement with the original rating awarded and a claim for an increased rating is important in terms of VA adjudicative actions. See Fenderson. The RO did not phrase the issue in terms of an initial rating for service-connected cervical spondylosis with radiculopathy; however, the Board concludes that the veteran was not prejudiced by this in the circumstances of this case. The RO's December 1995 statement of the case, the Board's April 1998 remand and the RO's August 1997 supplemental statement of the case (in which the RO assigned the current 10 percent rating effective March 1, 1992, the day after discharge), and subsequent supplemental statements of the case, provided the veteran with the appropriate applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation of 10 percent for the service-connected cervical spondylosis with radiculopathy. According to the statement and supplemental statements of the case, the RO did not limit its consideration to only the recent medical evidence of record, and did not therefore violate the principle of Fenderson. The RO, in effect, considered whether the facts showed that the veteran was entitled to a higher disability rating for this condition for any period of time since his original claim. Thus, the RO did comply with the substantive tenets of Fenderson in its adjudication of the veteran's claim for an increased rating for his cervical spondylosis with radiculopathy. He has been provided appropriate notice of the pertinent laws and regulations and has had his claim of disagreement with the original rating properly considered based on all the evidence of record. II. Law In accordance with 38 C.F.R. §§ 4.1, 4.2 (2001) and Schafrath, 1 Vet. App. 589, the Board has reviewed the service medical records pertaining to the service-connected disability at issue. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes, nor has the Board found any of the historical evidence in this case to be of sufficient significance to warrant a specific discussion herein. In evaluating a service-connected disability involving a joint, or in this case the cervical spine, the Board must consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (2001). As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45(f) (2001). A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. Where functional loss is alleged due to pain on motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered. DeLuca, 8 Vet. App. at 207-08. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2001). Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5290, slight limitation of motion of the cervical spine warrants a 10 percent evaluation; moderate limitation of motion warrants a 20 percent evaluation; and severe limitation of motion warrants a 30 percent rating (which is the maximum rating available under this diagnostic code). 38 C.F.R. § 4.71a, Diagnostic Code 5290. Also, as noted above, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5293, a 10 percent rating is appropriate for mild intervertebral disc syndrome; a 20 percent rating is assigned for moderate intervertebral disc syndrome with recurring attacks; and a 40 percent rating is assigned for severe intervertebral disc syndrome with recurring attacks and only intermittent relief. III. Factual background The veteran's service medical records indicate that he underwent surgery to relieve the pain from his bilateral thoracic outlet syndrome. Although it appears that the veteran retired from service after 20 years of service, it is clear that in the final years of duty he was unable to lift heavy objects or perform certain training exercises. Immediately after discharge, the veteran filed a claim with the RO for entitlement to service connection for thoracic outlet syndrome in March 1992. According to a May 1992 VA neuro examination report, by history, the veteran had bilateral thoracic outlet syndrome, which was accompanied by pain, in both hands. He underwent surgical intervention for this during service, but following the second operation, which was on his right upper extremity, he had apparently some significant bleeding, with fluid in the chest and was hospitalized and underwent a long period in an effort to recover. During this period, however, the veteran noticed that the inner aspect of his right arm and chest became very tender and sore. This condition persisted until the present time and actually he was discharged from service due to persistent medical difficulties. According to a May 1992 VA general medical examination report, the examiner observed that the veteran had bilateral inferior right and left neck surgical scars, bilateral inferior axillae surgical scars, two chest tube scars, right lateral chest area. The examiner diagnosed the veteran with thoracic outlet syndrome, bilateral/post-operative resection of first rib and anterior medial scalenectomy, right and left first rib resection. According to a January 19, 1993 VA orthopedic examination, by history, the examiner reported that the veteran developed left arm pain in 1989, which crept into his left shoulder and on to the right shoulder. An orthopedist told him that he had a neck problem because of cervical x-rays that showed a C5-6 disc area that was collapsed and that he had straightening of his cervical lordotic curve. He was treated conservatively and then went to another physician who diagnosed the veteran with thoracic outlet syndrome. He had surgery on the left shoulder and did well, but his right shoulder flared up. He had surgery on the right shoulder twice. The veteran stated that since the second surgery on the right side, he had a great deal of problems with the right shoulder. He complained of pain in and about the arm especially in the neck area about the scars and radiating down both arms. The examiner noted that the examination of the neck revealed a range of motion that was full with two, 4-inch anterior semilunar scars over the neck, at the neck- shoulder angle, very tender to touch on the right side, the skin, the scar, and even the bone. The veteran had no atrophy of the arm or forearm. The reflexes were slightly decreased in the right triceps on that side. His range of motion as stated before was full. He had no postural abnormalities or fixed deformity. Musculature of the back was difficult to tell in the neck area, but there were possible spasms were present. X-ray studies of the neck showed straightening of the cervical lordosis, numerous clips from previous surgeries in the thoracic outlet area. The examiner diagnosed thoracic outlet syndrome and residuals from surgical repair of the thoracic outlet syndrome. According to a February 5, 1993, VA nerve conduction study, the right upper extremity results were normal. The needle examination of selected muscles of the right and left upper extremity and cervical paraspinals showed polyphasic motor units in the C8, T1 distribution bilaterally. The examiner's impression based on the findings was bilateral C8, T1 radiculopathy with no electrophysiological evidence of thoracic outlet syndrome. According to a May 1993 VA x-ray report of the neck, the examiner noted degenerative spondylosis at C5-6 with bilateral neural foraminal encroachment and borderline canal diameter and minimal degenerative spondylosis posteriorly at C3-4 and C4-5, questionable area of anterior extra-dural soft tissue at C4-5, small central protrusion could not be ruled out. The examiner recommended correlation with either myelogram with post-myelogram computed tomography (CT) as opposed to Magnetic Resonance Imaging (MRI). According to a June 20, 1993, VA MRI report of the neck, the examiner's impression was that the veteran had a degenerative disk at C5-6 with disk space narrowing, posterior and posterolateral spondylosis, and bilateral foraminal encroachment, and canal was borderline narrowed adjacent to C5 vertebral bodies and C5-6, and small central protrusion at C4-5. In a November 10, 1993, rating decision, the RO granted service connection for straightening of the cervical lordotic curve with slight narrowing of the C5-6 disc space effective March 1, 1992, the day following separation from active duty, evaluated as noncompensable. On December 1, 1993, the RO issued the notice of its decision to the veteran, and in February 1994, the veteran filed a notice of disagreement. According to an April 4, 1994, VA orthopedic examination report, the veteran complained of aching pain in the neck for the last five years and pain in the elbows. The examiner's objective findings included no deformity of the neck; forward flexion of the neck to 58 degrees, extension backward to 48 degrees, lateral flexion to 28 degrees and rotation to 48 degrees. All movements were made with pain. The examiner diagnosed degenerative spondylosis at C5-6. According to an April 1994 VA x-ray report of the veteran's neck, the examiner's impression was that the veteran had narrowing of the C5-6 disk space with spondylosis at this level as described. According to a July 1995 VA CT cervical spine study, the examiner's impression was that there was mild generalized spondylosis present at the C3-4 level, C4-5 level and the C5- 6 level, but there was no evidence of spinal canal narrowing or spinal cord effacement. There was mild neural foramina narrowing on the right at the C4-5 level. There was suggestion of a small herniation at the C3-4 level where the spinal cord appeared to have normal configuration and if clinically indicated, an MRI might be useful. According to July 1995 VA nerve conduction studies, the examiner found that nerve conduction studies showed mildly prolonged right median motor and sensory distal latencies and markedly low amplitude compound muscle action potential (CMAP) and sensory nerve action potential (SNAP). There was a significant difference of these values when compared to the test done in February 1993. The electromyography (EMG) showed a moderate amount of denervation in APB and a mild degree of denervation in the muscles supplied by C8, T1 muscles. The examiner concluded that the veteran had right carpal tunnel syndrome and C8, T1 radiculopathy (double crush). VA outpatient treatment records spanning the year 1996 cumulatively show that the veteran received treatment for his neck and that he took pain relief medication; the RO assigned a 10 percent rating for straightening of the cervical lordotic curve with narrowing of C5-6 disc space and spondylosis effective March 1, 1992, the day after discharge. In August 1998, the RO received a written opinion from the veteran's private chiropractor. The chiropractor indicated that he had treated the veteran 17 times between February and April 1996 for complaints of neck and arm pain. The chiropractor opined that the veteran had carpal tunnel syndrome on the right. Motion palpation examination showed a bio-mechanical dysfunction of C6 in left and right anterior rotation and C1 in right lateral flexion. Cervical motion study revealed an extension fixation at C2 and flexion fixation at C1. The chiropractor concluded that at least part of the veteran's symptoms were neurologically caused by his cervical dysfunction. According to a September 19, 1998 VA examination report for brain and spinal cord, the examiner noted that the general physical examination revealed that the veteran had scars on his neck due to surgery on both sides. The neck movements were slightly restricted, especially in the flexion and extension and lateral movement to the right side. The veteran had no obvious muscle atrophy or fasciculations. On motor strength, proximally and distally were within normal limits at this point. He had positive Tinel's bilaterally at the wrist. The diagnosis was bilateral cervical radiculopathy, carpal tunnel syndrome with radiating pain and neck weakness and numbness. A CT scan of the neck revealed C5-6 disk disease. According to a January 3, 1998, VA examination report, the physical examination revealed that the cervical spine had flexion from zero to 40 degrees, extension from zero to 40 degrees, lateral bending to the right and left from zero to 20, and rotation to the right and left from zero to 60. The examiner observed that the veteran had painful motion. He had cervical paraspinal spasms and tenderness. He had a decrease in his cervical lordotic curve. He had 1+ biceps, triceps and brachioradialis reflexes. His strength was 5/5 and his sensory was intact to light touch. The examiner's assessment was that the veteran had degenerative disc disease and spondylosis at C5-6. In July 23, 1999, the RO received records from the Social Security Administration (SSA), to include a favorable disability decision dated May 16, 1997, with associated medical records. The SSA granted the veteran disability benefits due to thoracic outlet syndrome, right carpal tunnel syndrome and arm, shoulder, and neck pain. The SSA records include medical records from which it based its decision. The record includes VA outpatient treatment reports dated from 1999 to the present that cumulatively show treatment for various disabilities, to include the veteran's straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis. According to a March 14, 2000 VA peripheral nerve examination report, the examiner noted that the physical examination revealed that cranial nerves II, III, IV, and VI, the pupils were equal, round, and reactive to light and accommodation. Extraocular movements were full, without ptosis, strabismus, or nystagmus. The fields were full. The fundi were normal. Fine motor and sensory division was intact. Cranial nerve VII revealed no facial weakness. Cranial nerves VIII, IX, X, XI and XII were normal. Motor examination revealed basically normal tone, bulk and strength throughout. There was no muscle wasting in the upper extremities. The reflexes were somewhat diminished in the upper extremities compared to the lower, but all were present. There was no consistent pain or vibration or joint position deficit in the upper extremities. The veteran appeared to be in some pain when manipulating the cervical spine. The examiner diagnosed radiculopathy from cervical spondylosis and right median neuropathy. According to a March 2000 VA orthopedic examination report the examiner noted that physical examination of the cervical spine revealed that the veteran had multiple tender points involving his bilateral mid/lower trapezius and rhomboid muscles on the right, minimal loss of the cervical lordotic curve. No muscle spasms were noted. Range of motion of the neck revealed flexion to about seven degrees with just some tightness in the posterior neck end range. Extension was 20 degrees, rotation to the right was 80 degrees, and to the left was 80 degrees within the range of pain. The Spurling's test was positive for pain on the right, radiating from the neck down to the right shoulder. He had normal motor strength in the upper extremities, and sensory was intact. X-ray studies of the cervical spine revealed decreased C5-6, C6-7 disk spaces with spondylosis of both sides, and posterior cervical changes in the upper neck and upper lung fields were noted. EMG and nerve conduction studies that were done revealed carpal tunnel syndrome on the right with a C6-7 radiculopathy. The examiner provided the following impression. The veteran had cervical spondylosis with cervical radicular symptoms, causing pain in the neck with occasional radiation of pain into the arms, but no significant neurological deficits found on examination. Evaluation for straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis The Board finds that the evidence of record supports a 20 percent rating effective March 1, 1992 for straightening of the cervical lordotic curve with narrowing of C5-C6 space. The evidence shows that the veteran has experienced moderate intervertebral disc syndrome with recurring attacks since the time the veteran was discharged from service. Diagnostic Code 5293. The service medical records and post service medical records clearly show that the veteran has degenerative disc disease located at C5-6, and has experienced moderate, recurring attacks of neck pain that would also radiate down his arms. A rating in excess of 20 percent is not warranted at any time during the pendency of the claim because the evidence above fails to show or more nearly approximate severe impairment under Diagnostic Codes 5290 or 5293. The cumulative VA examination reports show no more than moderate loss of motion with pain on movement. Although the medical evidence indicates that the veteran has lost range of motion over the years, it does not more nearly approximate severe loss of motion pursuant to Diagnostic Code 5290. According to the March 2000 VA orthopedic examination report the examiner noted that the veteran had multiple tender points involving his bilateral mid/lower trapezius and rhomboid muscles on the right, minimal loss of the cervical lordotic curve. No muscle spasms were noted. Range of motion of the neck revealed flexion to about seven degrees with just some tightness in the posterior neck end range. Extension was 20 degrees, rotation to the right was 80 degrees, and to the left was 80 degrees within the range of pain. The Board finds that this does not more nearly approximate severe impairment under Diagnostic Code 5290. Also, the reports are negative for severe, recurrent manifestations due to the degenerative disc at C5-6. Therefore, a rating in excess of 20 percent is not warranted at any time. In view of this, the Board finds that this evidence fails to show severe limitation of motion, or severe intervertebral disc syndrome with recurring attacks and only intermittent relief. The Board has considered the evidence supplied from the SSA, which granted the veteran disability benefits in May 1997. The Board notes that it is not bound by the findings of another government agency. If the VA determines that a veteran is employable, and the Social Security Administration has determined otherwise, the VA must discuss this difference in its decision. See Shoemaker, supra; see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992) (Social Security Administration decision on unemployability is relevant to the VA's decision). Although the SSA records are relevant to this claim, they do not support a rating in excess of 20 percent under Diagnostic Codes 5290 or 5293. The SSA based its decision on the veteran's multiple disabilities and not just his service- connected straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis. The evidence supplied by SSA does not show that the veteran experienced severe intervertebral disc syndrome or severe impairment of his neck specifically as a result of straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis. Instead, it based its decision on a cumulative review of a number of different disabilities. In determining the degree of limitation of motion, the Board has considered the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45. See DeLuca. The VA examiner, however, described minimal discomfort overall with respect to the effect of the veteran's cervical spine disorder on his cervical range of motion. Therefore, the Board finds that the 20 percent rating in effect contemplates any loss of motion of the cervical spine, including during flare-ups. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293; See DeLuca. The Board has considered the veteran's September 1996 testimony before a hearing officer at the RO and his various written lay statements but finds that an a rating in excess of 20 percent is not warranted. It is important to note that where the determinative issue involves a medical opinion, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In other words, as a lay person untrained in the fields of medicine, the appellant is not a medical expert, and is not competent to render a medical opinion. Therefore, although he may believe that a rating in excess of 20 percent, the Board finds that the medical evidence of record does not support this contention. Finally, the Board has also given consideration to the potential application of 38 C.F.R. § 3.321(b)(1) (2001), which provides for extra-schedular evaluations for exceptional cases. Here, however, the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards, so as to require this type of evaluation. See 38 C.F.R. § 3.321. The current evidence of record does not demonstrate that the veteran's straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis has resulted in frequent periods of hospitalization, and there is no showing that when considered along, it interferes with his occupation or daily activities. Accordingly, with the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO, for referral of this issue to the VA Central Office for consideration of an extra-schedular evaluation, is not warranted. ORDER Subject to the law and regulations governing the payment of monetary benefits, an increased 20 percent initial rating for straightening of the cervical lordotic curve with narrowing of C5-C6 space and spondylosis is granted. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.