Citation Nr: 0810733 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-16 501A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) of the cervical spine. 3. Entitlement to a compensable rating for hepatitis C. 4. Entitlement to an effective date earlier than August 31, 2001, for the award of a 10 percent disability evaluation for DDD of the cervical spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to July 1970, with service in Vietnam from May 1968 to May 1969. This claim is on appeal from the St. Petersburg, Department of Veterans Affairs (VA) Regional Office (RO). In April 2005, the veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed at the Board. The veteran was notified of this by correspondence dated October 2007. In the January 2008 informal brief presentation, the veteran's representative indicated that he did not want another hearing. This case returns to the Board following a remand to the RO in June 2006. The issue of entitlement to a rating in excess of 10 percent for degenerative disc DDD of the cervical spine 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's DDD of the lumbar spine has been productive of no more than severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. 2. Resolving all reasonable doubt in the veteran's favor, his DDD of the lumbar spine is manifested by severe limitation of motion of the lumbar spine 3. The veteran's DDD of the lumbar spine is not manifested by incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician. 4. The veteran's DDD of the lumbar spine is not manifested by a vertebral fracture, cord involvement or unfavorable ankylosis of the whole spine. 5. The veteran's voiding dysfunction, related to his DDD of the lumbar spine, is currently manifested by daytime urinary frequency of three hour intervals. 6. The veteran's low back disability is productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 7. The veteran's low back disability is productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 8. Hepatitis C has not been characterized by intermittent fatigue, malaise, and anorexia; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week but less than two weeks during the past twelve-month period. 9. The veteran's claim for service connection for a cervical condition was pending from his initial application that was denied in November 1989 to the grant of his claim in August 2001. CONCLUSIONS OF LAW 1. Giving the veteran the benefit of the doubt, the criteria for a rating of 40 percent, but no more, for orthopedic impairment stemming from DDD of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5003-5010, 5289, 5292, 5293, 5295 (2003) (as amended by 67 Fed. Reg. 54,345 (Aug. 22, 2002), DCs 5237, 5242, 5243 (as codified at 68 Fed. Reg. 51,454 (Aug. 27, 2003)). 2. The criteria for a separate rating of 10 percent, but no more, for mild incomplete paralysis of the sciatic nerve of the right lower extremity associated with DDD of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.115a, 4.115b, DC 8520 (2007). 3. The criteria for a separate rating of 10 percent, but no more, for mild incomplete paralysis of the sciatic nerve of the left lower extremity associated with DDD of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.115a, 4.115b, DC 8520 (2007). 4. The criteria for a separate rating of 10 percent, but no more, for voiding dysfunction associated with DDD of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.115a, 4.115b (2007). 5. The criteria for the assignment of an initial compensable disability rating for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.114, DC 7354 (2007). 6. The criteria for an earlier effective date of October 6, 1989, for the award of service connection for DDD of the cervical spine, have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.160(c), 19.113, 19.114, 19.118 (1989), 38 C.F.R. §§ 3.102, 3.160(c), 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Rating Claims Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Before proceeding with its analysis of the veteran's claims, the Board finds that some discussion of the Fenderson case is warranted. In that case, the Court noted the distinction between a new claim for an increased evaluation of a service- connected disability and a case in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service-connected. In the former case, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the latter case, where, as here, the veteran has expressed dissatisfaction with the assignment of an initial rating, the VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim -- a practice known as "staged rating." In addition, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate ratings can be assigned for separate periods of time, based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Board has a duty to analyze the credibility and probative value of the evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When adequately explained, the Board is free to favor one medical opinion over another. Evans v. West, 12 Vet. App. 22, 26 (1998). DDD of the Lumbar Spine The veteran contends that his back is worse than currently evaluated. The RO initially rated his lumbar spine condition under pre-amended DCs 5010-5293 for intervertebral disc syndrome with a rating of 10 percent. The veteran's low back disability has subsequently been considered under the amended intervertebral disc and amended spine regulations and is now rated at 20 percent under DC 5010-5243 (10 percent based on range of motion and 10 percent based on objective medical evidence of chronic right lower extremity neurological symptoms, as per the June 2007 rating decision). When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Effective September 23, 2002, VA revised the criteria for evaluating spinal disorders under Diagnostic Code 5293, intervertebral disc syndrome. 67 Fed. Reg. 54,345-54,349 (2002). VA again revised the criteria for evaluating spine disorders, effective September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (2003). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under former Diagnostic Code 5292 and 40 percent since that time. Former Diagnostic Code 5292 provided that a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine; a maximum rating of 40 percent required severe limitation of motion. Former Diagnostic Code 5295 provided that a 20 percent evaluation required muscle spasm on extreme forward bending and loss of lateral spine motion; a maximum rating of 40 percent was warranted when the disability was productive of severe disability manifested by 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 or irregularity of joint space or some of the above with abnormal mobility on forced motion. Under former Diagnostic Code 5293, a 20 percent evaluation required moderate intervertebral disc syndrome, with recurring attacks. A 40 percent evaluation contemplated severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. Finally, a maximum evaluation of 60 percent evaluation required 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. Under an amendment to the rating schedule effective on September 23, 2002, the rating formula for evaluating intervertebral disc syndrome was changed. Under Diagnostic Code 5293, as amended, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. The revised criteria provide that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. For purposes of evaluations under revised Diagnostic Code 5293 (now 5243, see below), 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. Effective September 26, 2003, VA again revised the criteria for rating spinal disorders. These revisions consist of a new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. These changes are listed under Diagnostic Codes 5235-5243, with Diagnostic Code 5243 now embodying the recently revised provisions of the former Diagnostic Code 5293 (for intervertebral disc syndrome). Effective September 26, 2003, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2). In addition, with respect to the veteran's bilateral low back sciatic radiculopathy, under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation requires moderate incomplete paralysis of the sciatic nerve; a 40 percent evaluation requires moderately severe incomplete paralysis; a 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy; an 80 percent evaluation requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The veteran underwent two relevant VA examinations (in October 2002 and December 2002) under the pre-amended spine regulations. In the October 2002 VA examination report, range of motion was reported as flexion to 95 degrees (with 90 degrees as anatomically normal), extension to 35 degrees (with 30 degrees as anatomically normal), right and left lateral flexion to 40 degrees (with 30 degrees as anatomically normal), and right and left rotation to 35 degrees (with 30 degrees as anatomically normal). These range of motion tests were conducted with consideration of pain, fatigue, weakness, lack of endurance, and incoordination altered by repetition. The evidence did not show ankylosis of the lumbar spine. The December 2002 VA examination report only included range of motion findings for the cervical spine. To the extent the veteran complained of pain on motion, the examiner specifically reported that weakness, incoordination, fatigue, or lack of endurance did not further limit the veteran's range of motion. Although the veteran complained of daily pain with exacerbations in his neck, back, and hips at his October 2002 VA examination, there were no findings of frequent incapacitating episodes. Moreover, the examination report revealed normal straight leg raising bilaterally and negative Lasègue's sign. The evidence also revealed a 1+ lumbar lordosis with some right subscapular, paravertebral tenderness, but there was normal range of motion and no muscle spasms. The veteran underwent two relevant VA examinations (in July 2006 and March 2007) under the amended spine and disc regulations. At the time of the examinations, the veteran complained of ongoing back pain with sciatica flare-ups extending down the posterior leg, right worse than left. Objectively, range of motion was reported as flexion to 90 degrees in both the July 2006 and March 2007 VA examinations. The veteran reported aching sciatic pain that radiated up and down through his buttocks and into his hamstrings. He testified that this resulted in atrophy of his quadriceps muscle and numbness in his foot and shin. He has been receiving morphine and quarterly epidural steroid injections to inhibit pain. Exacerbations occurred every one or two months and lasted longer than two weeks. There was no weakness noted in the most recent examinations. At the July 2006 neurological examination, muscle strength, tone, and bulk were found to be normal. However, there was decreased pinprick sensation to both feet. In addition, deep tendon reflexes were absent in the right patella and right Achilles tendon. The veteran was diagnosed with radiculopathy of the right lower extremity associated with degenerative disc disease of his lumbar and cervical spine. In addition, the veteran noted daily urinary incontinence and frequency. At the March 2007 VA examination, there was found to be spasm in the thoracic sacrospinalis. However, there was no atrophy, guarding, tenderness, weakness, or pain with motion. In all extremities, muscle tone was found to be normal with no atrophy. Upon reflex testing, knee jerk (L3-L4) and ankle jerk (S1) were found to be absent. Lasègue's sign was negative. A history of urinary urgency and frequency was indicated, noting a daytime voiding interval of three hours but no evidence of nocturia. There was no evidence of incapacitating episodes in the past 12 months. VA outpatient treatment records for the relevant time period reveal similar findings. The veteran's back was found to be normal to inspection and with no spinal deviation, although the paraspinal muscles were mildly tender to palpation on the right. Range of motion was normal to flexion and extension, with stable ligaments and good back muscle strength. There was no sciatic pain with straight leg raises. Sensation was intact in both lower extremities, with reflexes 2+ (normal) and symmetric at the patella (L4) and the Achilles tendon (S1). Private medical evidence was also reviewed. Specifically, a November 2001 letter was received from a chiropractor who purported to have treated the veteran for three years. The chiropractor's diagnoses were lumbar disc displacement with associated sacroiliac somatic dysfunction, sciatic neuralgia with associated lumbar somatic dysfunction, and sacroiliac sprain/strain. His findings upon examination included muscle spasm and tenderness. Range of motion for the thoracolumbar spine was limited to flexion of 52 degrees, extension of 16 degrees with pain noted, right lateral flexion of 17 degrees with pain noted, left lateral flexion of 12 degrees with pain noted, right rotation of 20 degrees, and left rotation of 21 degrees. Based on the above, the Board finds that the veteran's low back disability warrants no more than a 40 percent rating as of August 2001. In reaching this determination, the Board notes that the range of motion findings provided by the veteran's private chiropractor reflect mild to moderate limitation of motion, but given his complaints of pain and corresponding functional impairment, a rating of 40 percent for severe limitation of motion under former Diagnostic Code 5292 is appropriate when pain and the DeLuca factors are considered. The Board notes this is the highest schedular rating available under the pre-amended version of DC 5292. In reaching this determination, the Board notes that the VA examiners did not discuss the impact of the veteran's pain on his functional impairment, to specifically include during periods of flare-up. Further, the medical records show no indication that the disability was manifested by listing of the whole spine to the opposite side, positive Goldthwatie's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Thus, a higher rating under former Diagnostic Code 5295 is not warranted. The Board further finds that an evaluation in excess of 40 percent is not warranted under former Diagnostic Code 5293. In reaching this conclusion, the Board notes the above findings do not reflect findings of pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy. As such, the Board finds that a rating in excess of 40 percent under former Diagnostic Code 5293 is not warranted. However, although the veteran's low back disability warrants a 40 percent evaluation under former Diagnostic Code 5292, effective September 23, 2002, his low back disability warrants separate 10 percent ratings under the revised criteria by assigning independent evaluations for his orthopedic and neurologic manifestations. The veteran's bilateral sciatic neuropathy could support a 40 percent rating assigned under former Diagnostic Code 5293, but given the Board's finding that the condition warrants a 40 percent rating under former Diagnostic Code 5292, VA may now separately rate the discrete neurologic manifestations of his low back disability. Here, given the lay and medical evidence consistently showing that the veteran's intervertebral disc disease is productive of bilateral lower extremity sciatic radiculopathy, the Board concludes that the evidence supports the veteran's entitlement to a separate 10 percent evaluations, and no more, under Diagnostic Code 8520, for disability comparable to mild incomplete paralysis of the sciatic nerve of his right and left lower extremities. In addition, voiding dysfunction may be rated according to urine leakage, frequency, or obstructed voiding. Here, there is evidence of urinary frequency related to the veteran's DDD of the lumbar and cervical spines. A 10 percent rating is assigned for urinary frequency when the daytime voiding interval is between two and three hours, or; there is awakening to void two times per night. A 20 percent rating is warranted when the daytime voiding interval is between one and two hours, or; there is awakening to void three to four times per night. See 38 C.F.R. § 4.31 (where the Schedule does not provide a zero percent rating, a zero percent shall be assigned if the requirements for a compensable rating are not met). As the March 2007 VA examination indicates that the veteran's daytime urinary frequency is three hours, the Board finds that an additional 10 percent rating is warranted for voiding dysfunction associated with DDD of the lumbar spine. Hepatitis C Under DC 7354, hepatitis C (or non-A, non-B hepatitis), nonsymptomatic hepatitis C is evaluated as noncompensable. A 10 percent rating is assigned for signs and symptoms such as intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. Here, the veteran filed an informal claim for hepatitis C in February 2000, followed by a formal claim in August 2001. In a November 2002 rating decision, the RO granted service connection for hepatitis C with a noncompensable rating. This decision was based on the results of an October 2002 VA examination which diagnosed the veteran with hepatitis C, type I or II, with mild periportal inflammation and mild enzyme elevation with no long-term sequelae. There is nothing within the October 2002 examination report which indicates intermittent fatigue, malaise, anorexia, or incapacitating episodes as a result hepatitis C. Similarly, VA and private medical records received since then fail to show symptamotology warranting a compensable rating for hepatitis. For these reasons, entitlement to a compensable rating for hepatitis C is denied. The Board has considered whether staged ratings are appropriate for all of the veteran's increased rating claims but finds no distinct time periods where the his symptoms warranted a different rating. See Hart. The Board has also considered the veteran's written statements and oral testimony that his service-connected disabilities are worse than currently evaluated. Although his statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. Next, the 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). In this regard, the Board finds that there has been no showing by the veteran that his DDD of the lumbar and cervical spine and his hepatitis C alone have caused marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. Although the veteran is currently unemployed and receives disability benefits from the Social Security Administration, other physical and psychological disorders, such as his knee disorders and post-traumatic stress disorder, have contributed to this. II. Earlier Effective Date for DDD of the Cervical Spine The provisions of 38 U.S.C. § 5110(a) govern the assignment of an effective date for an award of benefits. The statute provides that the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C.A. § 5110(b)(2). Historically, the veteran filed an initial claim for entitlement to service connection for a "cervical condition" on October 6, 1989. In a November 1989 rating decision, the RO considered the claim, along with 14 other claims. In its discussion, the RO acknowledged that the veteran "was noted to have history of cervical spine injury and a tendinitis [sic] of both elbows." The RO declined to grant service connection for the cervical condition in its November 1989 rating decision, as evidenced by its listing among the veteran's non-service-connected conditions at the end of the decision. However, the December 1989 letter notifying the veteran of the decision did not mention the issue of service connection for a cervical condition. In correspondence dated June 1990, the veteran sought to "re-open my service connection claim for increased evaluations of disabilities." He specified that, "My neck, middle, and lower back problems are a constant problem to me." By letter dated October 12, 1990, the RO informed him that they had denied his claims for increased service connected disability compensation. In a letter received October 29, 1991, the veteran claimed that the medical examinations that formed the basis of the October 1990 denial were incomplete and inconclusive. The evidence shows that VA did not receive an additional correspondence from the veteran regarding his cervical spine until August 2001, well beyond the one-year deadline. The RO considered the veteran's August 2001 correspondence as a new claim for service connection. He reported for a VA spine examination in December 2002, and the RO granted service connection for cervical DDD with limited motion with a 10 percent rating effective August 31, 2001, the date the claim was received. In the January 2008 informal brief, the veteran's representative argued that the veteran's October 6, 1989, claim for a cervical condition was never finalized, and therefore the effective date of the award of service connection for cervical DDD with limited motion should be October 6, 1989, rather than the August 31, 2001, date currently assigned. As applied to this case, the RO's November 1989 decision, which denied 14 other claims for service connection and increased ratings but did not explicitly deny the veteran's claim for a cervical condition, is an implicit denial of that claim. However, the Board construes the veteran's June 1990 correspondence as a timely-filed notice of disagreement with the adverse November 1989 rating decision. The RO never issued a statement of the case in response to the June 1990 notice of disagreement. In Ingram v. Nicholson, 21 Vet. App. 232 (2007), the United States Court of Appeals for Veterans Claims (Court), citing its earlier decisions in Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), and Kuo v. Derwinski, 2 Vet. App. 662, 666 (1992), reaffirmed that when the RO fails to issue a statement of the case, the claim remains pending and can be addressed when a subsequent claim for the same benefit is explicitly adjudicated. See also Myers v. Principi, 16 Vet. App. 228, 229 (2002). In doing so, the Court explained, "In other words, if the appellant believes that the Secretary has incorrectly determined that the date when his claim began, he may argue that the 'claim' identified was merely additional correspondence on his previously pending claim." Ingram at 243. In light of the foregoing, the Board finds that the veteran's claim for service connection for DDD of the cervical spine has been pending since October 6, 1989. Although the veteran's October 1989 claim was for service connection for a "cervical condition" rather than "DDD of the cervical spine," the Board finds that the claims were for the same disability, however styled. See Ashford v. Brown, 10 Vet. App. 120 (1997). The Board finds that the claims of service connection were for the same disability, i.e., a cervical spine disability. Having determined that the veteran's current claim for service connection for DDD of the cervical spine was filed on October 6, 1989, the Board must determine whether he had a cervical spine disability prior to August 31, 2002. In this regard, the Board observes that in a report of a June 1991 VA orthopedic examination it was noted that the veteran's lateral flexion of the cervical spine was reduced to 30 degrees and he was diagnosed with osteoarthritis of the cervical vertebra. In light of the foregoing, the Board finds that on October 6, 1989, when he filed his initial claim, the veteran had a cervical spine disability due to service. Thus, because the claim remained pending, an effective date of October 6, 1989, is warranted for the grant of service connection. Finally, the Board finds that there is no showing that the veteran's disabilities reflect so exceptional or so unusual a disability picture as to warrant higher ratings on an extra- schedular basis. The conditions are not productive of marked interference with employment, required frequent periods of hospitalization, and have not otherwise rendered impractical the application of the regular schedular standards. In the absence of these factors, the criteria for submission for assignment of an extra-schedular rating are not met. Thus, the Board is not required to remand this claim for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Duty to Notify and Duty to Assist Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Here, the veteran's DDD of the lumbar spine and hepatitis C claims arise from his disagreement with the initial evaluation and effective date following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service records and VA treatment records. The veteran submitted additional medical records, written statements, and was provided an opportunity to set forth his contentions during his Board videoconference hearing. In addition, the appellant was afforded VA medical examinations in October 2002, December 2002, July 2006, and March 2007. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Subject to the law and regulations governing payment of monetary benefits, a 40 percent rating for orthopedic impairment stemming from DDD of the lumbar spine is granted from August 31, 2001. Subject to the law and regulations governing payment of monetary benefits, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the right lower extremity, is granted from September 23, 2002. Subject to the law and regulations governing payment of monetary benefits, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the left lower extremity, is granted from September 23, 2002. Subject to the law and regulations governing payment of monetary benefits, a separate 10 percent rating for voiding dysfunction associated with DDD of the lumbar spine, is granted from September 23, 2002. Entitlement to a compensable rating for hepatitis C is denied. An earlier effective date of October 6, 1989, for the grant of service connection for DDD of the cervical spine is granted. REMAND As the Board has determined that an earlier effective date of October 6, 1989, for service connection for DDD of the cervical spine should be granted, the claim must be readjudicated by the RO under both the previous and current VA spine regulations since October 6, 1989. Accordingly, the case is REMANDED for the following action: 1. The RO should reevaluate the veteran's pending claim for a higher initial evaluation for his cervical spine disability since October 6, 1989, under both the former and the revised regulations. 2. If the benefits sought on appeal remain denied, the veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs