Citation Nr: 0810732 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 03-08 545A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for residuals of injury to the cervical spine for the period from November 6, 1999, to September 25, 2003. 2. Entitlement to a disability rating in excess of 40 percent for residuals of injury to the cervical spine for the period from September 26, 2003, to include the issue of entitlement to an effective date for said rating earlier than September 26, 2003. 3. Entitlement to an initial disability rating in excess of 20 percent for residuals of injury to the thoracic spine with slight compression deformity, T7-T8. 4. Entitlement to an initial disability rating in excess of 30 percent for post-concussion headaches. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from January 1997 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran testified before the undersigned at a hearing held at the RO in December 2005. The Board remanded this case in July 2006 for further development. The service medical records document that the veteran experienced two head injuries in service. Service connection is currently in effect for post-concussive headaches as a result. Notably, however, VA treatment records on file document diagnoses of an organic affective disorder with psychosis, and the veteran at his December 2005 hearing specifically requested consideration of that disorder as a residual of his head injuries. The Board notes that the treatment records also show that one provider felt the veteran might have developed a seizure disorder following the head injuries. In light of the above, the Board refers the issues of entitlement to service connection for an organic affective disorder and seizures to the RO for appropriate action. The Board notes that the RO, in August 2006, implemented the July 2006 Board decision granting service connection for low back disability, and assigned a 10 percent evaluation therefor effective August 29, 2000. No further communication from the veteran or his representative has been received concerning the disability rating assigned. The record shows, however, that the veteran continues to receive separate 20 and 10 percent evaluations for his respective thoracic and lumbar spine disorders. The Board points out that, effective September 26, 2003, thoracic and lumbar spine disorders are to be evaluated as one disability. The rating criteria do allow for assignment of separate evaluations for associated objective neurological conditions, but as discussed in the decision below, there are no such conditions in this case, and the RO in any event is not evaluating the disorders separately because of neurological impairment. In light of above, the Board will refer to the RO's attention whether the separate ratings assigned the veteran should be corrected to reflect a single disability evaluation for his thoracic and lumbar spine disorders since September 26, 2003. The issue of entitlement to an initial rating in excess of 30 percent for post-concussion headaches 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. For the period prior to September 26, 2003, the veteran's cervical spine disorder is not productive of either favorable or unfavorable ankylosis, severe limitation of cervical spine motion, severe intervertebral disc syndrome (IVDS) with recurring attacks and intermittent relief, incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, or by significant neurologic impairment. 2. For the period from September 26, 2003, the veteran's cervical spine disorder is not productive of ankylosis, pronounced IVDS, incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months, or by significant neurologic impairment. 3. The evidence does not support assignment of a 40 percent evaluation for cervical spine disability prior to September 26, 2003. 4. The veteran's thoracic spine disability is not productive of either favorable or unfavorable ankylosis, by forward flexion of the thoracolumbar spine limited to 30 degrees or less, by severe IVDS, by incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, or by significant neurological impairment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for residuals of injury to the cervical spine for the period prior to September 26, 2003, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5290, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5235 (2007). 2. The criteria for an evaluation in excess of 40 percent for residuals of injury to the cervical spine for the period from September 26, 2003, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5290, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5235 (2007). 3. The criteria for an effective date prior to September 26, 2003, for the assignment of a 40 percent evaluation for residuals of injury to the cervical spine have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). 4. The criteria for an initial evaluation in excess of 20 percent for residuals of injury to the thoracic spine with slight compression deformity, T7-T8 have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5291, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in his possession that pertains to the claim. In the present case, VA collectively provided the veteran with the notice contemplated by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in March 2003, July 2003 and February 2004 correspondences, except as to notice of the information and evidence necessary to substantiate the initial rating and the effective date to be assigned a grant of service connection in the event his claims were successful. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Once, however, his claims were substantiated through the grant of service connection and he was assigned initial disability ratings and effective dates for the grant of service connection in May 2001, VA had no further notice obligations under 38 U.S.C.A. § 5103(a) with respect to the veteran's disagreement with the initial ratings assigned. The record reflects that he did receive the notice to which he is entitled under 38 U.S.C.A. §§ 5103A and 7105, including through the issuance of the statement of the case. See Dingess/Hartman, 19 Vet. App. at 490-91. He was issued a statement of the case providing him with the law and regulations pertaining to effective dates. In any event, the veteran was provided with the missing notice in August 2006 and November 2006 communications. The RO readjudicated the claims in a March 2007 supplemental statement of the case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board notes that the United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) clarified VA's notice obligations in increased rating claims. The instant appeal originates, however, from the grant of service connection for the disorders at issue. Consequently, Vazquez-Flores is inapplicable. Based on the procedural history of this case, it is the conclusion of the Board that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist the veteran, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, were obtained by the RO or provided by the veteran himself. 38 U.S.C.A. § 5103A. Although treatment reports on file show that in June 2004, his clinicians encouraged him to file a claim with Social Security Administration for disability benefits, there is no indication that he followed their advice, and he has never suggested to VA that he filed a claim with the referenced agency. The record also reflects that the veteran has attended numerous VA examinations in connection with his claims. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected cervical and thoracic spine disorders. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 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 (2007). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should 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. 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 Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. Further, in Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Prior to September 23, 2002, IVDS was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5293. That code provided for a 20 percent rating for moderate IVDS, with recurring attacks. A 40 percent rating was warranted for severe IVDS, with recurring attacks and intermittent relief. A 60 percent evaluation was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). From September 23 2002 to September 25, 2003, the criteria for IVDS specified that a 20 percent evaluation was warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation required incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Alternatively, IVDS was rated by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293 and Note (1) (2003). Effective September 26, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is rated either under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides for a 20 percent evaluation where there is 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 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent evaluation where there are incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. When rating under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5243 and Notes (1) and (6) (2007). Prior to September 26, 2003, a maximum 10 percent evaluation was assignable for moderate or severe limitation of dorsal spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5291. Higher ratings of 20 and 30 percent were warranted for, respectively, favorable and unfavorable ankylosis of the dorsal spine. 38 C.F.R. § 4.71a, Diagnostic Code 5288. A maximum 30 percent evaluation was warranted for severe limitation of cervical spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). A 40 percent evaluation was warranted for unfavorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2003). With a fractured vertebrae which otherwise does not meet the criteria for a 60 or 100 percent rating, residuals are rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2003). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997). A. Cervical spine Factual background The veteran's period of service ended in November 1999. Service connection for cervical spine disability was granted in May 2001, with an assigned evaluation of 10 percent effective November 6, 1999. In February 2003, the RO increased the assigned evaluation to 20 percent, effective November 6, 1999. In May 2004, the RO further increased the evaluation to 40 percent, effective February 23, 2004. In March 2007, the RO granted an effective date of September 26, 2003, for the assignment of the 40 percent rating, and continued the denial of a rating in excess of 40 percent for that period. The RO also increased the initial evaluation assigned the disorder to 30 percent for the period from November 6, 1999 to September 25, 2003. The service medical records document occasional findings of neck tenderness and muscle spasm. He demonstrated full range of motion, with normal strength and no neurologic deficits. The veteran attended a VA examination in November 2000. He reported symptoms including neck pain when lifting heavy objects, and neck stiffness and tightness with prolonged sitting. He denied any history of restricted neck movement. Physical examination showed that he had a normal posture. He demonstrated tenderness in the cervical muscles. The veteran had full range of cervical spine motion, with pain during the testing. The examiner concluded that the functional loss demonstrated in the cervical spine was moderate. The veteran did not have any neurologic deficits. X-ray studies of the cervical spine showed mild anterior wedging deformity of C5 and C6. The examiner concluded that the functional loss due to pain in particular was mild for the cervical spine. On file are VA treatment records for November 2000 to April 2006. Those records prior to September 26, 2003, document complaints of neck pain and muscle spasm, exacerbated by movement and activities of daily living. His strength was consistently full, and no neurologic deficits were identified. In October 2002 he sought a medical opinion to give his employer concerning work limitations caused by back and neck pain. Treatment reports after September 26, 2003 document complaints of radiating cervical spine pain exacerbated by activities, including those of daily living; the veteran reported that the pain affected his work and general activity. The records show that he had mild neck spasms. Strength in the upper extremities was consistently full, and his deep tendon reflexes were normal. An April 2005 entry indicates that he was given a consult for a neck brace. At a November 2002 VA examination, the veteran reported experiencing cervical spine pain with movement or performance of his activities of daily living. The veteran reported that he was unable to find a job because of his neck disorder. Physical examination showed that he had no postural abnormalities. He exhibited cervical spine tenderness. He was able to forward flex the spine to 40 degrees; backward extend to 30 degrees; laterally flex to 20 degrees, bilaterally; and rotate to 30 degrees, bilaterally. He demonstrated pain and muscle spasm during range of motion testing. Deep tendon reflexes were 2+ and symmetrical in the upper extremities, and he had normal upper extremity strength. The examiner concluded that functional loss due to pain in the cervical spine was moderate. The record shows that the veteran was found to have no neurologic deficits at a November 2002 VA neurology examination. In April 2003, the veteran submitted a letter from the U.S. Postal Service informing him that to complete his employment application, he was required to supply a medical evaluation by a specialist in orthopedic surgery. On a VA Form 8940 filed in June 2003, the veteran reported that he last worked full time January 2002, and stopped working because of his service-connected disorders. The veteran attended a VA examination in February 2004, at which time he reported experiencing cervical spine problems, as well as difficulty with his activities of daily living. Physical examination showed that he had cervical tenderness as well as muscle spasm. Range of cervical spine motion testing disclosed flexion to 10 degrees; extension to 20 degrees; bilateral lateral flexion 20 degrees; and bilateral rotation to 15 degrees. Neurologic examination was normal. X-ray studies of the cervical spine showed a slight decrease in the height of C5-C6. The examiner concluded that the veteran had a history of an old mild compression deformity in the cervical spine with X-ray evidence showing slight loss of height C5-C6; he noted that the veteran demonstrated disproportionately severe functional loss in range of motion due to pain. With respect to employability, the examiner concluded that the veteran's capacity for physical work was affected to a limited extent by the musculoskeletal diagnoses, but that his alcoholism and psychiatric disability appeared to be a greater hindrance. At his December 2005 hearing before the undersigned, the veteran argued that because he had been experiencing the same symptoms since service, the effective date assigned by the RO for his increased initial rating should be made effective November 6, 1999. He testified that his neck pain radiates, and sometimes results in tingling and numbness of his upper extremities. He testified that he was unable to work because of his back, and explained that he dropped out of trade school because of his physical limitations and the effects of his medications. The veteran attended a VA examination in November 2006. He reported that he last worked in 2000, and stopped working because of lack of energy, in addition to his back, neck and head problems. He complained of daily neck pain requiring rest about ten times in a month. He explained that his neck pain was intermittently accompanied by tingling and numbness in his fingers and toes, and that he experienced occasional arm weakness. Physical examination showed that he had normal posture. He exhibited tenderness in his cervical region, without muscle spasm. Range of cervical spine motion testing disclosed flexion to 10 degrees; extension to 15 degrees; bilateral lateral flexion to 20 degrees; rotation to the right to 30 degrees, and rotation to the left to 25 degrees. The veteran had pain in all excursions of motion, without any increase on repetitive motion testing. His upper extremity strength was 5/5, with 2+ deep tendon reflexes and normal sensation. X-ray studies of the cervical spine were normal, with no evidence of compression fracture or other significant abnormality. Electrodiagnostic studies of the upper extremities were normal, with no evidence of peripheral neuropathy or of radiculopathy. The examiner diagnosed myofascial pain syndrome involving the cervical muscles. Analysis The RO evaluated the veteran's cervical spine disorder as 30 percent disabling for the period prior to September 26, 2003, under Diagnostic Code 5290, and as 40 percent disabling from September 26, 2003, under Diagnostic Code 5235. In assigning a 30 percent evaluation under Diagnostic Code 5290, the RO appears (from the explanation in the March 2007 supplemental statement of the case) to have based the rating on moderate limitation of cervical spine motion with demonstrable deformity of a vertebral body, rather than severe limitation of cervical spine motion without consideration of such a demonstrable deformity. I. The period prior to September 26, 2003 The evidence shows that at his November 2000 VA examination and when seen by treating clinicians, the veteran demonstrated full range of cervical spine motion, although he exhibited pain with excursions of motion. At his November 2002 VA examination, he exhibited some diminished range of motion, with the greatest restriction in his ability to rotate. He had flexion limited to 40 degrees, extension limited to 30 degrees, lateral flexion limited to 20 degrees, and rotation limited to 30 degrees; normal excursions of motion for those planes are, respectively, 45 degrees, 45 degrees, 45 degrees, and 80 degrees. See 38 C.F.R. § 4.71a, Note (2) following the General Rating Formula for Diseases and Injuries of the Spine (2007). Notably, however, he has not demonstrated any weakness, incoordination, fatigue, or other factors affecting his functional impairment, outside of pain. With respect to pain, the November 2002 examiner described the associated functional impairment as only moderate. In the Board's opinion, even when functional impairment from pain is considered, in light of the substantial level of range of motion retained, the limitation of cervical spine motion is most accurately characterized as no more than moderate in severity, warranting a 20 percent evaluation under Diagnostic Code 5290. See Deluca v. Brown, 8 Vet. App. 202 (1995). The Board points out that the evidence does show the presence of a deformity of a vertebral body, and that the veteran therefore is also entitled to a 10 percent evaluation under Diagnostic Code 5285. Notably, however, as there is no cord involvement from any fractured vertebra, or evidence that the veteran is bedridden or requires long leg braces, a 100 percent rating under Diagnostic Code 5285 is not for application. In addition, there is no indication that the veteran uses a neck brace; a 60 percent rating under Diagnostic Code 5285 for residuals of a fractured vertebra without cord involvement, but with abnormal mobility requiring a neck brace (jury mast), is not warranted. The evidence shows that the veteran clearly retains movement in each excursion of neck motion. His cervical spine clearly is not ankylosed, and an increased evaluation under Diagnostic Code 5287 therefore is not warranted. Although the veteran has a wedge deformity in his cervical spine, VA examinations in November 2000 and November 2002 both showed the absence of any neurologic deficits. The treatment reports prior to September 26, 2003, also show that no neurologic deficits were present. The veteran consistently demonstrated full upper extremity strength and normal reflexes. Nor do the records document any incapacitating episodes of IVDS affecting the veteran prior to September 2003, or otherwise suggest that he was prescribed bed rest by his treating physicians for any episodes of IVDS. In short, the evidence prior to September 2003 does not suggest the presence of IVDS, and in any event shows that the veteran did not demonstrate any neurologic impairment associated with his cervical spine disorder. A higher rating under Diagnostic Code 5293 therefore is not for application. In sum, the evidence demonstrates that for the period prior to September 26, 2003, the veteran's cervical spine disorder was most accurately characterized as productive of moderate limitation of cervical spine motion, with a demonstrable deformity of a vertebral body, warranting a combined 30 percent evaluation. The veteran did not have ankylosis, IVDS, or any neurologic impairment. Consequently, an initial rating in excess of 30 percent for cervical spine disability for the period prior to September 26, 2003, is not warranted. 38 C.F.R. § 4.3. II. The period from September 26, 2003 Based on the medical evidence on file, Board finds that an evaluation in excess of 40 percent for the veteran's cervical spine disorder is not warranted under any appropriate diagnostic code. Turning first to the rating criteria in effect prior to September 26, 2003, a maximum 40 percent evaluation was warranted for severe limitation of cervical spine motion combined with the presence of demonstrable deformity of a vertebral body. Moreover, at no point on VA examination or in the treatment records on file has the cervical spine been described as ankylosed. Although the veteran was at one point offered a consult for a neck brace, the records show that he in fact does not use such a brace. An increased evaluation under former Diagnostic Codes 5285, 5287, or 5290 is not warranted. Although the veteran complaints of numbness and tingling affecting his upper extremities, and has demonstrated muscle spasm, neurologic examination has been consistently negative for any deficits. His deep tendon reflexes are normal, his upper extremity strength is full, and electrodiagnostic testing in November 2006 ruled out any radiculopathy or other pertinent neurologic impairment. Nor is there any evidence or complaints of incapacitating episodes of IVDS, let alone evidence of such episodes having a total duration of at least 6 weeks in any year. A rating in excess of 40 percent under either version of Diagnostic Code 5293, or the current Diagnostic Code 5243 therefore is not warranted. As already noted, there is no evidence of a neurologic condition to separately evaluate. Turning to the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation represents the maximum evaluation assignable for limited cervical spine motion, in the absence of unfavorable ankylosis of the entire spine. In short, the evidence does not demonstrate ankylosis of the cervical spine, cord involvement or the requirement of a neck brace, or IVDS or associated neurologic impairment. Entitlement to a 40 percent evaluation for cervical spine disability for the period from September 26, 2003, therefore is not warranted. 38 C.F.R. § 4.3. III. Earlier effective date The veteran contends that the 40 percent evaluation assigned for his cervical spine disorder should have been made effective November 6, 1999. The basis for his claim is that his cervical spine symptoms have remained the same since November 1999. As indicated earlier, the effective date of an increase in disability is the later of the date of claim, or the date entitlement arose. In this case, the relevant claim is that submitted for service connection on November 6, 1999. Neither at that time, nor at any point prior to September 26, 2003, did the veteran's cervical spine disorder demonstrate findings compatible with an evaluation higher than 30 percent. The Board will not reiterate the evidence already analyzed in detail above, but will note in summary that the evidence showed, at most, moderate limitation of cervical spine motion, along with the presence of deformity of a vertebral body. The veteran did not demonstrate any IVDS or neurologic impairment associated with his cervical spine disorder. In short, the record shows that entitlement to a 40 percent evaluation arose well after the date of claim, and not prior to September 26, 2003. The Board notes in passing that it is questionable whether the veteran's cervical spine disorder warrants a 40 percent evaluation at all from September 26, 2003, given the absence of demonstrable neurologic impairment, incapacitating episodes of IVDS, or ankylosis. Regardless, the evidence certainly does not demonstrate that entitlement arose prior to September 26, 2003. The Board notes that the RO chose September 26, 2003, because the rating criteria for evaluating spinal disorders were amended on that date. Even assuming, however, that a 40 percent rating was warranted under the amended rating criteria, an increased rating under the revised criteria may not be made effective before the effective date of the change. See VAOPGCPREC 7-2003. In short, entitlement to a 40 percent evaluation for cervical spine disorder did not arise at any point prior to September 26, 2003, and any increased rating granted pursuant to the criteria effective September 26, 2003, may not be made effective prior to the date of the amendment. Accordingly, the veteran's claim for entitlement to an earlier effective date for the grant of a 40 percent evaluation for cervical spine disability is denied. IV. Fenderson considerations The Board lastly notes that the RO, in granting service connection for cervical spine disability, assigned an effective date for the grant of November 6, 1999. The Board has reviewed the evidence on file and concludes that the underlying level of severity for the veteran's cervical spine disorder has remained at the 30 percent level, but not higher, for the entire period prior to September 26, 2003, and as no more than 40 percent disabling for the period since September 26, 2003. For the reasons discussed at length above, and because there is no indication of greater disability than that described above during the respective periods, a higher rating is not warranted for any time since the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). B. Thoracic spine Factual background Service connection for thoracic spine disability was granted in May 2001, and evaluated as 10 percent disabling effective November 6, 1999. In March 2007, the RO increased the evaluation assigned the thoracic spine disorder to 20 percent, effective November 6, 1999. This evaluation has remained in effect since that time. The service medical records document instances of back tenderness. The veteran had full range of back motion, with normal strength and gait, and no neurologic deficits. Diagnostic studies showed mild scoliosis of the thoracic spine. VA treatment records for November 2000 to April 2006 show that he complained of radiating thoracic and lumbar pain, exacerbated by his daily activities. The records show that his back was tender and had spasms. His strength was 5/5 on all occasions except for two in November 2004 and May 2006. In November 2004 he was seen in the emergency room for a back injury. Physical examination showed slight weakness in the lower extremities, but the examiner could not fully assess the veteran because the veteran insisted on staying on the floor. In May 2006, neurologic evaluation showed slight decrease in leg strength secondary to pain, although gait was normal. The treatment records show that the veteran did not have neurologic impairment, that his deep tendon reflexes were normal, and that straight leg raise testing was negative. He denied incontinence or weakness. A September 2003 entry noted that the veteran enrolled in a trade school; later entries indicate that he dropped out of his schooling. He reported that he lost his last lost job because of headaches. In April 2005, he was given a consult for a back brace. At his November 2000 VA examination, the veteran reported back tightness and stiffness, as well as problems after prolonged standing. He denied any radiation of pain. Physical examination showed that he had a normal gait, and did not use an assistive device. He had normal posture. There was tenderness over the thoracic spine, but the veteran exhibited full range of thoracic spine motion without pain or spasm. There was no tenderness of the lumbar spine, or any restriction of motion or evidence of pain or spasm. Straight leg raise testing was negative. The veteran had no neurologic deficits. X-ray studies of the lumbosacral spine were normal. Studies of the thoracic spine showed slight compression deformity at T7-T8. The examiner concluded that the functional loss due to pain in particular was mild for the thoracic spine. At his November 2002 VA examination, the veteran complained of thoracic and lumbar pain with movement or performance of his activities of daily living. He also reported lower back stiffness and stated that he could not find a job because of his back disorder. He indicated that his daily activities were affected to a moderate extent, and that he did not receive much relief with his medications. He denied using an assistive device. Physical examination showed that he had no postural abnormalities. He exhibited thoracic tenderness, and forward flexion beyond 80 degrees was limited and painful. He was able to backward extension to 30 degrees with pain. He was able to laterally flex and rotate to 35 degrees, bilaterally. Straight leg raise testing was negative. His deep tendon reflexes were 2+ and symmetrical. He had normal strength. The examiner concluded that functional loss in the thoracic spine due to pain was mild to moderate. The record shows that the veteran was found to have no neurologic deficits at a November 2002 VA neurology examination. Received in April 2003 was correspondence to the veteran from the U.S. Postal Service requesting that he supply a medical evaluation by a specialist in orthopedic surgery. In June 2003 the veteran reported that he stopped working on a full time basis in January 2002 due to his service- connected disorders. At his February 2004 VA examination, the veteran complained of problems with his thoracic spine. He denied bowel or bladder problems. He denied any unsteadiness, but reported problems with prolonged walking, as well as difficulty with his activities of daily living and restriction in his ability to bend, lift, turn or squat. He denied using assistive devices. He indicated that he left his last job after passing out following his headaches. Physical examination showed tenderness in the thoracolumbar spine, with muscle spasm. Low back extension was limited to 30 degrees, but otherwise lower back motion was normal. No abnormalities were identified on neurologic examination. X-ray studies of the thoracic spine showed mild spondylotic changes. X-ray studies of the lumbar spine were normal. The examiner concluded that the veteran had a history of an old compression deformity at T7 and T8 with current X-ray evidence of mild spondylitic changes. He also concluded that the veteran had lumbar strain with normal X-rays and mild functional loss in range of motion due to pain. With respect to employability, the examiner concluded that the veteran's capacity for physical work was affected to a limited extent by the musculoskeletal diagnoses, but that the records indicate that his alcoholism and psychiatric disability represent a greater hindrance. At his December 2005 hearing, the veteran testified that he experiences constant lower back pain, particularly with certain motions. He explained that his back caused problems with sleeping, and asserted that he was unable to work because of his back problems. He explained that he stopped attending trade school because of physical limitations and the effects of his medications. At his November 2006 VA examination, the veteran reported frequent thoracic spine pain, and constant low back pain. He indicated that his pain is increased with certain activities, requiring him to then rest for up to two hours. He explained that his lower back pain radiates, and occasionally caused him to limp. He also explained that his toes sometimes tingle, but he denied any incontinence. Physical examination showed he had normal posture. He walked slowly, but his gait was normal, and he did not use assistive devices. There was tenderness in the thoracic and lumbar spine areas, with mild lumbar spine spasm. Lumbar lordosis was maintained. Range of lumbar spine motion testing revealed flexion to 40 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 5 degrees; and bilateral rotation to 10 degrees. Pain was evident in all excursions of motion. Straight leg raise testing was positive. He had full strength and normal deep tendon reflexes. Sensation was normal. X-ray studies of the lumbar spine were normal, with no evidence of a compression fracture. X-ray studies of the thoracic spine showed findings consistent with early degenerative osteoarthritis. Electrodiagnostic studies of the lower extremities were normal, with no evidence of peripheral neuropathy or of radiculopathy. The examiner diagnosed myofascial pain syndrome involving the thoracic and lumbar paraspinal muscles; and early degenerative osteoarthritis of the thoracic spine. The examiner explained that repetitive movements could not be done of the lumbar spine because of complaints of pain on movement. Analysis The Board initially notes that in August 2006, the RO implemented the Board's July 2006 determination that service connection for low back disability was warranted. The RO assigned the veteran a 10 percent rating for the disorder. The veteran has not initiated an appeal of that rating. Effective September 26, 2003, the rating schedule does not allow for separate evaluations of thoracic and lumbar spine disorders. Therefore, given that service connection is in effect both for a thoracic spine disability and a lumbar spine disorder, the Board will, in evaluating the proper disability rating assignable for the period from September 26, 2003, consider all pertinent thoracolumbar symptoms. The RO evaluated the veteran's thoracic spine disability as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Based on the medical evidence on file, Board finds that an evaluation in excess of 20 percent for the veteran's thoracic spine disorder is not warranted under any appropriate diagnostic code. Turning first to the rating criteria in effect prior to September 26, 2003, the Board notes that 20 percent represents the maximum evaluation assignable for severe limitation of dorsal spine motion with the presence of a deformity of vertebral body. Moreover, none of the VA examiners or treating clinicians suggested that the dorsal spine was ankylosed. To the contrary, he clearly retains a substantial level of motion in that spinal segment. Nor is there any evidence of cord involvement or other residuals of a vertebral fracture (other than the deformity of the vertebral body). A higher rating under Diagnostic Codes 5285, 5288, or 5291 therefore is not warranted. A 40 percent evaluation under the former Diagnostic Code 5293 required at least severe IVDS. A 40 percent evaluation under the revised Diagnostic Code 5293 and current 5243 requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Although the veteran experiences muscle spasms affecting his back, as well as two episodes of slightly diminished lower extremity strength (and a positive straight leg raise test in November 2006), neurologic evaluation has been consistently negative for deficits. His reflexes are consistently normal, and when examined by VA, his strength has been full. Electrodiagnostic studies in November 2006 confirmed the absence of any radiculopathy. Nor is there any evidence demonstrating incapacitating episodes of IVDS, or otherwise showing that he was prescribed bed rest by his treating physicians. Given the absence of evidence showing that the veteran was prescribed bed rest for incapacitating episodes of his IVDS totaling at least 4 weeks in duration during any year, and the absence of any neurologic impairment, the Board finds that a 40 percent evaluation under the former versions of Diagnostic Code 5293 or current 5243 is not warranted. Nor is there a basis, in the absence of neurologic impairment, on which to separately evaluate any neurologic manifestations of the thoracic back disorder for any period involved in this appeal. With respect to whether a higher rating is warranted under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation requires forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence shows that his thoracolumbar spine retains motion in all excursions, and clearly is not ankylosed. Moreover, even when functional loss due to pain is considered, he is consistently able to forward flex to well beyond 30 degrees. A 40 percent evaluation therefore is not warranted. See Deluca, supra. Accordingly, a rating in excess of 20 percent for thoracic spine disability is denied. 38 C.F.R. § 4.3. The Board lastly notes that the RO, in granting service connection for thoracic spine disability, assigned an effective date for the grant of November 6, 1999. The Board has reviewed the evidence on file and concludes that the underlying level of severity for the veteran's thoracic spine disorder has remained at the 20 percent level, but not higher, since that date. For the reasons enumerated above, and because there is no indication of greater disability than that described above during the period beginning November 6, 1999, a higher rating is not warranted for any time since the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). C. Extraschedular considerations The Board has considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2007). The veteran has remained unemployed for a number of years. He contends that his neck and thoracic spine disorders are responsible for his unemployment, although at other times he identified his headaches and other disorders as responsible. He also indicates that his disorders and associated medications prevented him from completing trade school. In any event, the Board points out that the February 2004 examiner specifically addressed the interference of the disorders on employment, and concluded that while they have some impact, the veteran's alcoholism and psychiatric disorders are primarily responsible for the employment problems. The letter from the U.S. Postal Service suggests only that the agency required information on his orthopedic disorders in order to make an informed decision; the letter did not suggest that the agency was inclined to deny him employment because of the disorders. Nor does the evidence otherwise demonstrate marked interference with employment as to require referral for consideration of an extraschedular evaluation. In addition, there is no evidence that his cervical and thoracic spine disabilities have necessitated frequent periods of hospitalization or that the manifestations of the disabilities are unusual or exceptional. Therefore, the Board finds that the criteria for submission for an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial disability rating in excess of 30 percent for residuals of injury to the cervical spine for the period from November 6, 1999 to September 26, 2003 is denied. Entitlement to an initial disability rating in excess of 40 percent for residuals of injury to the cervical spine for the period from September 26, 2003, is denied. Entitlement to effective date earlier than September 26, 2003, for the assignment of a 40 percent rating for residuals of injury to the cervical spine is denied. Entitlement to an initial disability rating in excess of 20 percent for residuals of injury to the thoracic spine with slight compression deformity, T7-T8 is denied. REMAND In the July 2006 remand, the Board requested that the RO schedule the veteran for a VA examination. The examiner was specifically requested to comment on, inter alia, whether the veteran's headaches were "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." The record shows that following the remand, the veteran was examined by VA in November 2006. The examiner described a May 2006 entry in the VA treatment records noting the veteran's complaint of intense daily headaches which on 15 to 20 occasions had required him to lie down. The examiner noted that the veteran's current complaints included daily headaches lasting up to one hour, with frequent nausea and dizziness, and occasional vomiting. The veteran explained that he was unable to do anything during his headaches. After examining the veteran, the examiner explained that the information required by the Board was addressed in the medical history. The examiner's understanding to the contrary notwithstanding, he did not provide the information requested in the Board's remand. Specifically, he failed to comment on whether the veteran's headaches were "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." His opinion on this question is particularly important, given that this information is required to determine whether a 50 percent evaluation is warranted. Given that the VA examination report did not comply fully with the Board's remand instructions, the Board must remand the case again for further VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the veteran for a VA neurological examination to determine the current severity of his service- connected headaches. The claims file must be made available to the examiner for review of the veteran's pertinent medical history. All studies deemed appropriate should be performed and all findings should be set forth in detail. The frequency and duration of attacks and description of level of activity the veteran can maintain during attacks should be noted. The examiner should specifically comment on whether the veteran's headaches are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The RO should then prepare a new rating decision and readjudicate the remaining issue on appeal. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs