Citation Nr: 0810511 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 03-34 970A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for pyelonephritis. 2. Entitlement to service connection for a bilateral shoulder disorder. 3. Entitlement to service connection for a major depressive disorder. 4. Entitlement to an initial disability rating in excess of 20 percent for a cervical spine disability. 5. Entitlement to an initial compensable rating, prior to September 26, 2003, and thereafter in excess of 10 percent for a lumbar spine disability. 6. Entitlement to an initial compensable rating, prior to June 23, 2003, a disability rating in excess of 10 percent, prior to June 6, 2007, and thereafter in excess of 30 percent for migraines. ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The veteran served on active duty with the U.S. Air Force from June 1992 to October 1992 and with U.S. Army from August 1997 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2002, October 2003, and November 2007 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. By means of the July 2002 rating decision, service connection was awarded for cervical spine, lumbar spine, and migraine disabilities. The veteran's cervical spine disability was assigned an initial rating of 20 percent. Her lumbar spine disability and migraines were held to be noncompensable. In October 2003, the RO held that the veteran's lumbar spine disability and migraines warranted increased disability ratings. Her migraines were held to be 10 percent disabling, effective June 23, 2003. Her lumbar spine disability was assigned a 10 percent disability rating, effective September 26, 2003. In November 2007, the RO held that the veteran's migraines warranted a 30 percent evaluation, effective June 6, 2007. The issue of entitlement to service connection for a major depressive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not have a chronic disorder, characterized by pyelonephritis, attributable in anyway to service. 2. The veteran does not have a bilateral shoulder disorder attributable in anyway to service, any incident therein, or secondary to a service-connected disability. 3. Throughout the pendency of this appeal, the veteran's cervical spine disability has been productive of no more than moderate limitation of motion. Forward flexion of the cervical spine has not been limited to 15 degrees or less and there is no evidence of favorable ankylosis of the entire cervical spine. There is no objective evidence of intervertebral disc syndrome, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. Prior to September 26, 2003, the veteran's lumbar spine disability is productive of slight limitation of flexion and minimal pain of motion. 5. Throughout the pendency of this appeal, the veteran's lumbar spine disability has been productive of no more than slight limitation of motion. Flexion has not been limited to less than 60 degrees and the combined range of motion of the thoracolumbar spine has not been less than 120 degrees. At its worst, flexion has been limited to 75 degrees and the combined range of motion was 205 degrees. There is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks but less than four weeks during a recent 12-month period. 6. Prior to June 23, 2003, the subjective evidence of record indicated that the veteran experienced prostrating migraine attacks on average one in two months. There was no evidence in the record that she experienced migraines on an average of once a month. 7. As of June 23, 2003, the subjective evidence of record indicated that the veteran experienced prostrating attacks on average once a month. There is no evidence of record indicating that the veteran's migraines have resulted in very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for pyelonephritis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, (2007). 2. The criteria for service connection for a bilateral shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 3. The criteria for an initial disability rating in excess of 20 for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5290, 5293 (2002); C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2007). 4. Prior to September 26, 2003, the criteria for an initial disability rating of 10 percent for a lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (2001). 5. The criteria for an initial disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5292, 5293, 5295 (2001); 38 C.F.R. § 4.71a, Diagnostic Code 5293, effective September 23, 2002; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243, effective September 26, 2003. 6. The criteria for an initial compensable rating of 10 percent, prior to June 23, 2003, for migraines have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045, 8100, 9304 (2007). 7. As of June 23, 2003, the criteria for a disability rating of 30 percent but no higher for migraines have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045, 8100, 9304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007), are examined. First, VA has a duty to indicate which portion of information should be provided by the claimant, and which portion VA will try to obtain on the claimant's behalf, which was accomplished by a March 2006 letter, with respect to the initial claims of entitlement to service connection and the subsequent claims of entitlement to increased disability ratings. The March 2006 letter also indicated that in determining a disability rating, the RO considered evidence regarding nature and symptoms of the condition, severity and duration of the symptoms, and the impact of the condition and symptoms on employment. The evidence that might support a claim for an increased rating was listed. The veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. In any event, the Board notes that the United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008) clarified VA's notice obligations in increased rating claims. As to the claims the claims regarding the veteran's service- connected cervical spine, lumbar spine, and migraine disabilities, the instant appeal originates from the grant of service connection for the disabilities at issue. Consequently, Vazquez-Flores is inapplicable. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson 19 Vet. App. 473 (2006), which held that the VCAA 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a claim of service connection, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 484. Despite any inadequate notice provided to the appellant, no prejudice results in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Particularly, the veteran has been afforded the information necessary to advance any contention by means of the March 2006 letter. As such, the veteran was aware and effectively notified of information and evidence needed to substantiate and complete her claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Because a preponderance of the evidence is against the claims of entitlement to service connection for pyelonephritis; entitlement to service connection for a bilateral shoulder disorder; entitlement to an initial rating in excess of 20 percent for a cervical spine disability; entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability; and entitlement to an initial disability rating in excess of 10 percent, prior to June 23, 2003, and thereafter in excess of 30 percent for migraines, any potentially contested issue regarding a downstream element is rendered moot. Again, the veteran is not prejudiced by the Board's consideration of the pending issues. The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004), continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the record contains October 2006, February 2007, and November 2007 supplemental statements of the case following the March 2006 letter. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (holding that a timing error can be cured when VA employs proper subsequent process). It is further noted that in order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice must also request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). See Pelegrini, 18 Vet. App. at 121. In this case, this principle has been fulfilled by the March 2006 letter. Next, VCAA requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, 38 C.F.R. § 3.159(c), which includes providing a medical examination when such is necessary to make a decision on the claim. The record contains the veteran's service medical records, VA outpatient reports, private treatment records from Bodyworks Massage, TRA Medical Imaging, Providence St. Peter Hospital, Back in Motion Chiropractic Clinic, Pierce County MMG Clinics, Multicare Health System, Pacific Massage Clinic, Columbia Valley Community Health Services, Lakewood Urgent Care Clinic, Gerhild Bjornson, M.D., Lacey Chiropractic Clinic, and VA examination reports dated in May 2002 and June 2007. Based on the foregoing, VA satisfied its duties to the veteran. Analysis I. Service Connection The veteran alleges entitlement to service connection for pyelonephritis and a bilateral shoulder disorder. Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Where a veteran served 90 days or more during a period of war and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for pyelonephritis and a bilateral shoulder disorder is not warranted. The medical evidence of record does not demonstrate that the veteran has had chronic pyelonephritis or that her current shoulder disorder is attributable to service. During service the veteran did receive treatment for urinary tract infections in June 1999, February 2001, and March 2001; however, the post-service medical evidence is silent as to evidence of a chronic disorder. Rather, upon VA examination in May 2002, the veteran was diagnosed as having a history of pyelonephritis with no chronic problems at that time. The Board acknowledges that the veteran presented upon VA examination with subjective complaints of approximately two urinary tract infections a year; however, this has not been demonstrated by the medical evidence of record. The record contains no evidence of a current chronic disorder, characterized by pyelonephritis. As to her claim of entitlement to service connection for a bilateral shoulder disorder, the Board acknowledges that the veteran was involved in a motor vehicle accident during service, which resulted in her currently service-connected disabilities of the cervical spine and lumbar spine. A review of the medical evidence, however, fails to reveal that any current bilateral shoulder disorder is attributable to her period of service or any incident therein. During service, after her February 2001 motor vehicle accident, the veteran reported with complaints of pain and numbness in her upper extremities. In May 2001, the veteran underwent an examination in order to rule out cervical radiculopathy. In this respect, motor examination demonstrated no significant weakness or abnormalities in her upper limb reflexes. Sensory examination was also normal and Babinski's testing was negative. Additionally, EMG examination demonstrated no evidence of peripheral mononeuropathy, polyneuropathy, plexopathy, or cervical radiculopathy to explain her symptoms. The aforementioned findings surprised the examiner; therefore, he conducted a closer examination for myofascial trigger points. Careful evaluation of the soft tissues revealed significant tenderness at the bilateral trapezii, worse on the right side. The examiner indicated that pain generators likely included muscle spasms, as well as, possible disc and zygapophysical joint derangements. He further opined that a large component of her symptoms was likely reactive myofascial pain. Accordingly, there was no definite diagnosis of a chronic bilateral shoulder disorder. Post-service, upon VA examination in May 2002, there was no evidence of intrinsic shoulder problems. The veteran's symptomatology was limited to discomfort, mainly over the trapezius. Range of motion of both shoulders was flexion to 80 degrees, extension to 45 degrees, abduction to 180 degrees, and external and internal rotation to 90 degrees. In March 2004, the veteran presented with complaints that her shoulders were tight, tense, and in knots. Physical examination demonstrated tenderness to palpation over the shoulders. Axial compression over the shoulders caused some discomfort in the trapezius areas. Axial enbloc rotation resulted in some discomfort over the interscapular region. There was full range of motion in both shoulders and there was no pain on motion. The veteran's shoulder symptomatology was limited to tightness in the trapezius areas. VA treatment records indicate slight limitation of motion, diminished deep tendon reflexes, and tenderness to palpation in the trapezius areas. Range of motion testing demonstrated flexion to 60 degrees. Extension was to 70 degrees. Rotation was to 90 degrees, bilaterally. Lateral flexion was to 20 degrees, bilaterally. Deep tendon reflexes in the biceps and triceps were 2/4. Although the record demonstrates post-service complaints of shoulder problems, the evidence of record does not demonstrate that any current bilateral shoulder is attributable to her period of service or to her service- connected back disabilities. Rather, it is noted that the veteran sustained work-related injuries in December 2000, August 2004, and November 2005, and presented with related complaints of shoulder problems. The record contains absolutely no probative evidence supporting her theory of entitlement. In conclusion, the Board finds that there is no medical evidence of record to substantiate a chronic disorder of pyelonephritis or nexus between the veteran's period of service and any current bilateral shoulder disorder. As to the veteran's contentions that she has been suffering from pyelonephritis and a bilateral shoulder disorder since service, the Board acknowledges that she is a certified nurse; however, a chronic bilateral shoulder disorder attributable to service has not been demonstrated by the evidence of record. There is no corroborating evidence of continuity of symptomatology. Additionally, the Board finds that there is no current diagnosis or evidence of a chronic disorder characterized by urinary tract infections. Accordingly, service connection for pyelonephritis and bilateral shoulder disorder is not warranted. II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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 (2007). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). 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. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2007). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2007). The U.S. Court of Appeals for Veterans Claims (Court) has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2007). The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history. The Court has held that compensation for service-connected injury is limited to those claims which show present disability and held: "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 importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). More recently, however, the United States Court of Appeals for Veteran Claims determined that the above rule is inapplicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. At the time of an initial award, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Moreover, staged ratings are appropriate in any increased- rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, No. 05-2424 (Vet. App. Nov. 19, 2007). In exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical & Lumbar Spine The veteran has alleged entitlement to increased disability ratings for her service-connected cervical spine and lumbar spine disabilities, throughout the pendency of her appeal. The veteran's cervical spine disability has been assigned an initial disability rating of 20 percent. Her lumbar spine disability was initially rated as noncompensable, prior to September 26, 2003. As of September 26, 2003, her lumbar spine disability has been rated as 10 percent disabling. While the veteran's appeal was pending VA revised regulations for evaluating disabilities of the spine. The Court in DeSousa v. Gober, 10 Vet. App. 461, 467 (1997), held that the law "precludes an effective date earlier than the effective date of the liberalizing . . . regulation," but the Board shall continue to adjudicate whether a claimant would "receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." Accordingly, the veteran's claims will be adjudicated under the old regulation for any period prior to the effective date of the new diagnostic codes, as well as under the new diagnostic code for the period beginning on the effective date of the new provisions. Wanner v. Principi, 17 Vet. App. 4, 9 (2003). Before revisions, Diagnostic Code 5290 provided for ratings based on limitation of motion of the cervical spine. A 10 percent rating was provided for slight limitation of motion of the cervical segment of the spine. Moderate limitation of motion warranted a 20 percent evaluation. Severe limitation of motion warranted a 40 percent rating. Diagnostic Code 5292 provided for ratings based on limitation of motion of the lumbar spine. A 10 percent rating was provided for slight limitation of motion of the lumbar segment of the spine. Moderate limitation of motion warranted a 20 percent evaluation. Severe limitation of motion warranted a 40 percent rating. Diagnostic Code 5293 provided for ratings based on intervertebral disc syndrome. A 10 percent rating was assigned for mild intervertebral disc syndrome. A 20 percent rating was assigned for moderate intervertebral disc syndrome, and a 40 percent rating was assigned for severe intervertebral disc syndrome with recurring attacks and intermittent relief. A maximum 60 percent rating was assigned for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. Diagnostic Code 5295 provided criteria for rating lumbosacral strain. Lumbosacral strain with only slight subjective symptoms warranted a noncompensable rating. A 10 percent rating requires lumbosacral strain with characteristic pain on motion. A 20 percent evaluation required muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A maximum 40 percent rating is warranted for severe lumbosacral strain, with a listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing with irregularity of joint space, or some of the above with abnormal mobility on forced motion. Effective September 26, 2003, the criteria for evaluating disabilities of the spine were amended. See 68 Fed. Reg. 51,454 (August 27, 2003) (codified at 38 C.F.R. § 4.71a). A General Formula for Diseases and Injuries of the Spine provides that 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, the following ratings are assigned: A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is assigned for 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 not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, the 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Note (1) provides that any associated, objective neurologic abnormalities, including bowel or bladder impairment, are to be rated separately under the appropriate diagnostic code. Note (2) provides, in part, that the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Note (2) also provides that for rating purposes, the normal ranges of motion in the thoracolumbar spine are as follows: forward flexion, 90 degrees; extension, zero degrees, left and right lateral flexion, 30 degrees; and left and right lateral rotation, 30 degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the regulations revised effective September 23, 2002, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2007). Under these criteria, when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2007) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) following 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2007) provides that when evaluating on the basis of chronic manifestations, the adjudicator is to evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3) following 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2007) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. As noted above, the criteria for rating intervertebral disc syndrome that became effective on September 23, 2002, contained a note defining incapacitating episodes and chronic orthopedic and neurologic manifestations. The Federal Register version setting forth the final rule indicates that the three notes following the version of Diagnostic Code 5293 that became effective on September 23, 2002, were deleted when intervertebral disc syndrome was reclassified as Diagnostic Code 5243 in the criteria that became effective on September 26, 2003. This was inadvertent and has now been corrected by 69 Fed. Reg. 32,449, 32,450 (June 10, 2004), a final correction that was made effective September 26, 2003. The Board will initially address whether the veteran is entitled to an initial disability rating in excess of 20 percent for her service-connected cervical spine disability. The medical evidence of record includes VA treatment records, private treatment records, and VA examination reports dated in May 2002 and June 2007. Upon VA examination in May 2002, range of motion testing of the cervical spine demonstrated flexion to 40 degrees. Extension was to 40 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 30 degrees. Right rotation was to 20 degrees and left rotation was to 30 degrees. There was no tenderness or abnormal curvature of the spine. The veteran was diagnosed as having chronic neck pain secondary to degenerative disc disease C6-7 and secondary to cervical strain sustained in a motor vehicle accident. In December 2002, the veteran sustained a work-related injury to her back and was prescribed physical therapy. Physical therapy records from December 2002 to March 2003 indicate moderate spasms and moderate discomfort to palpation. In March 2004, a VA treatment note indicated cervical spine flexion to 20 degrees; extension to 50 degrees; rotation to 60 degrees, bilaterally; and lateral flexion to 35 degrees, bilaterally. In the upper extremities, sensation was intact and motor strength was good. She was diagnosed as having a cervical strain, historically related to her work injury of December 15, 2002. The veteran sustained an additional work injury on August 25, 2004, which resulted in cervical, thoracic, and low back pain. After her injury, range of motion testing revealed flexion to 36 degrees and extension to 60 degrees. Lateral flexion to 40 degrees, on the right, and to 36 degrees on the left. Rotation was to 58 degrees on the right and to 64 degrees on the left. Neurological reflexes, however, were intact. In September 2004, flexion was documented to 60 degrees as well as to 80 degrees. Extension was to 70 degrees. Rotation was to 90 degrees, bilaterally. Lateral flexion was to 20 degrees, bilaterally. Deep tendon reflexes in the biceps and triceps were 2/4. A September 2004 MRI report indicated mild degenerative osteophytosis at C6-7. In October 2004, there was tenderness to palpation in the cervical spine area. Flexion was to 60 degrees. Extension was to 70 degrees. Rotation was to 90 degrees, bilaterally. Lateral flexion was to 20 degrees bilaterally. Deep tendon reflexes in the biceps and triceps were 2/4. In June 2007, the veteran was afforded an additional VA examination. Gait and posture were normal. She did not require an assistive device for ambulation. Range of motion of the cervical spine was flexion to 35 degrees. Extension was to 45 degrees. Right lateral flexion was to 35 degrees. Left lateral flexion was to 40 degrees. Right rotation was to 70 degrees. Left rotation was to 65 degrees. Pain began at endpoints. Joint function was not additionally limited by fatigue, pain, weakness, lack of endurance or incoordination after repetitive use. Motor function and sensory function testing was within normal limits in the upper extremities. X-rays demonstrated degenerative arthritis and joint narrowing in the cervical spine. The veteran's prior diagnosis of a cervical spine strain was changed to C5-6, C6- 7 bulging discs. With respect to Diagnostic Code 5290, the Board notes that to warrant a rating in excess of 20 percent, the evidence must show that the veteran's disability is productive of severe disability due to limitation of motion of the cervical spine. The Board acknowledges that the veteran experienced exacerbations after her work injuries in December 2002 and August 2004; however, these were acute. Rather, range of motion findings documented upon VA examinations dated in May 2002 and June 2007 were essentially the same. Throughout the pendency of this appeal, the veteran has not demonstrated severe limitation of motion of the cervical spine, nor were they described by the examiners as such. Thus, the Board finds that the criteria for a rating in excess of 20 percent under Diagnostic Code 5292, as in effect prior to September 26, 2003, have not been met. Applying the amended criteria to the facts in this case, the Board also finds that the amended criteria for a rating in excess of 20 percent, as of September 26, 2003, for the veteran's service-connected cervical spine disability have not been met. Range of motion testing performed throughout the pendency of this appeal has not demonstrated that the veteran's cervical spine symptomatology fall within the criteria for a rating in excess of 20 percent. The veteran's cervical spine disability has never been shown to have been manifested by ankylosis or forward flexion limited to 15 degrees or less. The Board has also considered whether separate ratings may be assigned based on neurological deficit. The veteran, however, has not demonstrated any neurological deficits attributable to his cervical spine disability. Upon VA examination in May 2002, the veteran denied any radicular symptoms. In March 2004, sensation and motor strength were within normal limits. In August 2004, neurological reflexes were intact. Additionally, upon VA examination in June 2007, motor function and sensation was within normal limits in the upper extremities. In light of this evidence, additional separate ratings are not warranted for neurological defects. In conclusion, an initial disability rating in excess of 20 percent for a service-connected cervical spine disability is denied. As to her lumbar spine disability, the veteran alleges entitlement to an initial compensable rating, prior to September 26, 2003, and thereafter in excess of 10 percent for a lumbar spine disability. A review of the medical evidence of record demonstrates that the veteran warrants an initial disability rating of 10 percent, prior to September 26, 2003, for her lumbar spine disability. Throughout the pendency of this appeal, the Board finds that the criteria for a rating in excess of 10 percent have not been met, under either version of the rating criteria. The veteran's lumbar spine disability was initially held to be noncompensable under the rating criteria of Diagnostic Code 5295, in effect prior to September 26, 2003. The Board, however, finds that an initial disability rating is warranted based upon the May 2002 VA examination findings. Range of motion testing of the lumbar spine demonstrated flexion limited to 80 degrees. Extension was to 35 degrees. Lateral flexion was to 40 degrees, bilaterally. Rotation to 35 degrees, bilaterally. The examiner noted that there was minimal discomfort with motion. In light of the aforementioned findings of limitation of flexion and pain on motion, the veteran warrants an initial disability rating of 10 percent. A disability rating in excess of 10 percent is not warranted under the criteria in effect prior to September 26, 2003, because the veteran's lumbar spine disability was not characterized by intervertebral disc syndrome, moderate limitation of motion, or muscle spasm on extreme forward bending and unilateral loss of lateral spine motion. Applying the amended criteria to the facts in this case, the Board finds that the amended criteria for a rating in excess of 10 percent for the veteran's service-connected lumbar spine disability have not been met. In order to warrant a disability rating in excess of 10 percent for her lumbar spine disability, flexion has to have been limited to less than 60 degrees; or the combined range of motion of the thoracolumbar spine has been limited to less than 120 degrees; or, is there evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. VA treatment records dated in March 2004, indicated normal lumbar lordosis and an unaltered gait. Range of motion of the lumbar spine was flexion to 75 degrees and extension to 10 degrees. Lateral flexion was to 30 degrees, bilaterally. Rotation was full, bilaterally. On August 25, 2004, the veteran sustained an injury to her lumbar spine. Subsequent treatment records dated in August 2004, September 2004, and October 2004, indicated that there were no obvious spinal deformities; however, there was tenderness upon palpation. Range of motion testing demonstrated flexion to 80 degrees and extension to 30 degrees. Lateral flexion was to 35 degrees, bilaterally. Rotation was to 45 degrees, bilaterally. Upon VA examination in June 2007, gait and posture were normal and she did not require an assistive device for ambulation. She exhibited full range of motion of the thoracolumbar spine, without any evidence of radiating pain on movement or muscle spasm. There was no ankylosis. Although there was pain at the endpoints, joint function was not additionally limited by fatigue, pain, weakness, lack of endurance or incoordination after repetitive use. Accordingly, the criteria for a rating in excess of 10 percent under the General Formula for Diseases and Injuries of the Spine have not been met. In addition, the examinations have shown no objective neurological deficits, such as bowel or bladder impairment, which could be separately rated. In summary, based on the most probative evidence of record, a rating in excess of 10 percent is not warranted under the amended criteria discussed above. The Board has also considered whether separate ratings may be assigned based on neurological deficit. The veteran, however, has not demonstrated any neurological deficits attributable to his lumbar spine disability. In March 2004, August 2004, September 2004, and October 2004, sensation was intact and motor strength was good in the lower extremities. Straight leg raising was to 90 degrees, bilaterally, without discomfort. Deep tendon reflexes were 2. Upon VA examination in June 2007, straight leg raising testing was negative. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Motor function and sensory function testing was within normal limits. As the June 2007 VA examination failed to demonstrate intervertebral disc syndrome, a rating based on incapacitating episodes is not warranted. In conclusion, the Board finds that the criteria for an initial rating of 10 percent for a lumbar spine disability have been met. The veteran's lumbar spine disability, however, does not warrant a disability rating in excess of 10 percent throughout the pendency of this appeal. Additionally, an initial disability rating in excess of 20 percent for cervical spine disability is not warranted. Migraines The veteran alleges entitlement to increased disability ratings for her service-connected migraines throughout the pendency of this appeal. The veteran was awarded an initial noncompensable evaluation for her migraines. As of June 23, 2003, the veteran was awarded a 10 percent disability rating for her migraines. Effective, June 6, 2007, a 30 percent disability rating was assigned. The veteran's migraines are evaluated under the criteria set forth at 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this provision, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. A 30 percent rating is warranted for migraine headaches manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. This is the maximum rating available for migraine headaches pursuant to Diagnostic Code 8100. The rating schedule also provides that the disability will be rated pursuant to Diagnostic Codes 8045 and 9304. Purely subjective complaints following trauma, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304 which provides for dementia due to head trauma. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. resulting from brain trauma are rated under the diagnostic codes specifically dealing with such disabilities. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The evidence of record includes the veteran's VA treatment records and two VA examination reports dated in May 2002 and June 2007. Upon review of the relevant evidence of record the Board finds that an initial disability rating of 10 percent is warranted for the veteran's migraines. In this regard, the veteran submitted, upon VA examination in May 2002, that she was experiencing prostrating headaches up to three times every six months, which lasted one to two days. Accordingly, the veteran has reported headaches with characteristic prostrating attacks averaging one in two months such as to warrant an initial disability of 10 percent, but no higher, prior to June 23, 2003. VA treatment records indicated on June 23, 2003, that the veteran reported a history of two to three migraine headaches a month. She also indicated that she experienced headaches on a weekly basis. Her migraines were accompanied by nauseas and photophobia. In June 2007, the veteran was afforded an additional VA examination. The veteran reported that she was experiencing recurring throbbing headaches on average four times a week which last six hours. They were accompanied by sound and light sensitivity. Her ability to perform daily functions was impaired. As of June 23, 2003, the relevant and probative medical evidence of record demonstrates that the veteran's migraines manifested to the degree of severity reflected by the criteria for a 30 percent rating pursuant to the provisions of Diagnostic Code 8100. The Board, however, does not find that the veteran's headache disability causes severe economic inadaptability, such that the next higher rating of 50 percent under Diagnostic Code 8100 would be appropriate. It is noted that the veteran has continued to maintain her employment as a nurse and she has not alleged or submitted any evidence indicating that her migraines have resulted in severe economic adaptability. As such, a disability rating of 30 percent, but no higher, for migraines is warranted, effective June 23, 2003. The Board has considered rating the veteran's disability under Diagnostic Codes 8045 and 9304, but notes that absent evidence of any manifestation other than subjective complaints such as headaches, a rating in excess of 10 percent would not be warranted. A 10 percent rating under Diagnostic Code 8045 is the maximum rating available for subjective complaints following head trauma. Additionally, there is no evidence of dementia to support a higher rating under Diagnostic Code 9304. In conclusion, an initial disability rating of 10 percent for migraines is warranted. As of June 23, 2003, a disability rating of 30 percent, but no higher, is warranted for the veteran's headaches. Extraschedular The potential application of various provisions of Title 38 of the Code of Federal Regulations (2007) have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2007). The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that her service- connected disabilities have resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to service connection for pyelonephritis is denied. Entitlement to service connection for a bilateral shoulder disorder is denied. Entitlement to an initial disability rating in excess of 20 percent for a cervical spine disability is denied. Entitlement to an initial disability rating of 10 percent, prior to September 26, 2003, for a lumbar spine disability is granted. Entitlement to a disability rating in excess of 10 percent, for a lumbar spine disability is denied. Entitlement to an initial disability rating of 10 percent, but no higher, prior to June 23, 2003, for migraines is granted. As of June 23, 2003, a disability rating of 30 percent, but no higher, for migraines is granted. REMAND The Board finds that additional evidentiary development is still required with regards to the claim of entitlement to service connection for a major depressive disorder. A review of the veteran's service medical records demonstrates various complaints of and treatment for anxiety, stress, and depression. In April 2000, upon routine examination, the veteran indicated that she had experienced palpitations or heart pounding; the examiner noted that she experienced anxiety. The veteran reported that she had not been diagnosed as having a mental condition; rather, she had sought counseling to relieve stress and improve her health/well being. She had a history of frequent illnesses related to stress. In May 2000, she was diagnosed as having an adjustment disorder with depressed mood. Her psycho- social stressors were occupational and economical problems. The veteran had withdrawn from an ICU course in December 1999 because she had been in danger of failing and she alleged that she had been targeted and not supported by the course director. Additionally, she had filed for bankruptcy in March 2000 and was recently divorced after 17 months of marriage. She had also been recently informed that she owed the government more than $1700 due to overpayment while in the Officer Basic Course. During service, in March 2001, the veteran attempted suicide with a medication overdose. She was hospitalized and reported multiple depressive symptoms, including depressed mood, tearfulness, poor energy and concentration, and decreased sleep. Her affect was labile and occasionally tearful. Mood was depressed. Thought processes were linear, without psychotic symptoms. As to thought content, there was no suicidal or homicidal ideation, or any auditory or visual hallucinations. She was diagnosed as having a major depressive disorder, single episode. Alcohol abuse in the past was noted. In May 2001, the veteran reported feelings of worthlessness, suicidal ideation, and depression. Physical examination demonstrated normal affect and mood. Post-service, upon VA examination in May 2002, the veteran reported that she was finding it hard to believe that nearly a year after her discharge from service her self-esteem had not improved. She felt that she was unable to succeed because she had been smothered during active duty and that she was now unable to fit in with civilian life. The examiner noted that the veteran had experienced many problems, given her adjustment disorder diagnosis while in service; she had experienced situational episodes; and had a hard time dealing with stress. Although the veteran claimed that she had poor self-esteem and lacked concentration, the examiner noted that she was a critical care nurse and probably had more ability to concentrate than she thought. The examiner was unable to render a diagnosis at that time. In July 2002, entitlement to service connection for a major depressive disorder was denied because there was no current diagnosis. In her March 2003 notice of disagreement, the veteran submitted that she continued to experience anxiety, self-esteem issues, and depression related to her experiences in the Army. In June 2003, VA treatment records indicate that a positive depression screen. Accordingly, the Board finds that an additional examination would be helpful in the adjudication of the claim. Accordingly, as additional development is required prior to a final disposition by the Board, the case is REMANDED for the following action: 1. The veteran then should be scheduled for a VA examination by a psychiatrist for the purposes of determining whether she has a major depressive disorder, or any other psychosis, related to her military experience. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that the veteran has a major depressive disorder which had its onset in service, or is otherwise related to service. A rationale for all conclusions should be provided. 2. After the development requested above has been completed, the RO should again review the record. If the benefit sought on appeal remains denied, the veteran and any representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2005). ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs