Citation Nr: 0811439 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 98-19 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 20 percent for herniated nucleus pulposus with radiculopathy at C6-C7 (hereinafter, "cervical spine disorder"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and a friend, J.M. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from June 1993 to June 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which established service connection for the veteran's cervical spine disorder and assigned an initial rating of 20 percent, effective June 16, 1997. The veteran appealed, contending that a higher rating was warranted. The veteran provided testimony at a hearing before personnel at the RO in May 2001 and February 2002, and before the undersigned Veterans Law Judge in June 2003. Transcripts of these hearings have been associated with the veteran's VA claims folder. In January 2004 and March 2006, the Board remanded the veteran's claim for additional development to include, in pertinent part, adequate notification as to the criteria for a higher rating. As a preliminary matter, the Board finds that the remand directives have been satisfied, and, thus, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case has been completed. 2. The veteran's service-connected cervical spine disorder is not manifested by severe symptoms of intervertebral disc syndrome, with recurring attacks and intermittent relief. 3. The veteran's service-connected cervical spine disorder is not manifested by severe limitation of motion, nor forward flexion of the spine limited to 15 degrees or less. 4. The veteran's service-connected cervical spine disorder is not manifested by ankylosis. 5. The veteran's service-connected cervical spine disorder has not resulted in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the veteran's service-connected cervical spine disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2007); 38 C.F.R. § 4.71a, Diagnostic Code 5290-5293 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that there has been a significant change in the law during the pendency of this case. Specifically, the Veterans Claims Assistance Act of 2000 (VCAA), which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). However, because the VCAA was enacted after the initial adjudication of the veteran's claim by the RO, it was impossible to provide notice of the VCAA before the initial adjudication in that claim. Indeed, VA's General Counsel has held that the failure to do so under such circumstances does not constitute error. See VAOGCPREC 7- 2004. Under such circumstances, the United States Court of Appeals for the Federal Circuit has indicated that this defect can be remedied by a fully compliant VCAA notice issued prior to a readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the veteran was sent VCAA-compliant notification letters in May 2001, April 2004, September 2006, and August 2007, with readjudication of the claim by Supplemental Statements of the Case beginning in September 2001. Taken together, these letters informed the veteran of the evidence necessary to substantiate her current appellate claim, what information and evidence she must submit, what information and evidence will be obtained by VA, and indicated the need for the veteran to advise VA of or to submit any evidence in her possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the holding in Quartuccio, supra. Moreover, the September 2006 letter included the specific information regarding disability rating(s) and effective date(s) mandated by the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board observes that the Court recently issued a decision in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), regarding the information that must be provided to a claimant in the context of an increased rating claim. Specifically, the Court held that section § 5103(a) requires: (1) at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; and (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. With respect to the foregoing, the Board observes that in Dingess/Hartman, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. 19 Vet. App. at 490- 91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied. Moreover, the VCAA notification letters provided to the veteran in this case are compliant with Vazquez-Flores. In pertinent part, the May 2001 letter satisfies element (1), while the September 2006 letter satisfies both element (2) and (3), to include a listing of the relevant Diagnostic Codes for evaluating spine disabilities. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the veteran has been satisfied in this case. All relevant medical records pertinent to the issue on appeal are in the claims folder. Nothing indicates that the veteran has identified the existence of any relevant evidence that has not been obtained or requested. She has had the opportunity to present evidence and argument in support of her claim, to include at the May 2001, February 2002, and June 2003 hearings. Moreover, she was accorded VA medical examinations regarding this case in July 1997, April 1998, April 2001, June 2004 and August 2007. Consequently, the Board concludes that the duty to assist has been satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Legal Criteria. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The Board notes that the veteran's cervical spine disorder was evaluated under Diagnostic Codes 5290 and 5293. However, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 for evaluating intervertebral disc syndrome were amended, effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). The newly enacted provisions of this section allow for intervertebral disc syndrome (preoperatively or postoperatively) to be evaluated based either on the total duration of incapacitating episodes over the past 12 months or 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, whichever method results in the higher evaluation. In addition, effective September 26, 2003, further changes have been made to the remaining criteria for evaluating spine disorders, to include Diagnostic Code 5290. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003). These revisions consist of a new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Additionally, associated neurological abnormalities (e.g., bowel or bladder impairment) are now for evaluation separately. 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). In this case, the veteran's claim for service connection was received in June 1997, prior to the effective dates of the revised criteria. Thus, the criteria of former Diagnostic Codes 5290, 5293, and 5295 are for application in the instant case, as well as the amended criteria. Former Diagnostic Code 5290 provided ratings for limitation of motion of the cervical spine when limitation was slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a (2002). Former Diagnostic Code 5293 provided for evaluation of intervertebral disc syndrome. Intervertebral disc syndrome was assigned a noncompensable rating when it was postoperative, cured. A 10 percent evaluation was assigned when it was mild. Moderate symptoms with recurring attacks were assigned a 20 percent evaluation. Severe symptoms, with recurring attacks and intermittent relief were assigned a 40 percent evaluation. Pronounced symptoms, that were persistent and 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, with little intermittent relief were assigned a 60 percent evaluation. The maximum evaluation available under Diagnostic Code 5293 was 60 percent. 38 C.F.R. § 4.71a (2001). The amended rating criteria now define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Although the regulations that became effective September 26, 2003 are not applicable in rating the veteran's condition prior to their effective date, it is instructive to look to the current regulations, which assign ratings based on three graduated, measurable ranges of limited motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Those numeric ranges were based on a well-recognized medical standard of measuring permanent impairment that had been in effect since 1984. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). The General Rating 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, a 10 percent rating is warranted 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, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted 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 is 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. Forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent evaluation. An evaluation of 40 percent 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. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, 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. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). Analysis. In the instant case, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 20 percent for her service-connected cervical spine disorder under either the "old" or the "new" criteria. Initially, the Board observes that the veteran's service- connected cervical spine disorder is manifested by pain and resulting functional impairment. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Nevertheless, as detailed below, the Board finds that the pain and functional impairment are not of such severity as to warrant a rating in excess of 20 percent. First, the Board observes that the competent medical evidence does not show that the veteran's cervical spine disorder results in severe symptoms of intervertebral disc syndrome, with recurring attacks and intermittent relief. For example, while a January 1997 MRI of the cervical spine demonstrated a large disc extrusion in the left paramedian location at C6-7, there was only a small disc extrusion at C4-5; no evidence of spinal stenosis; the intramedullary cord demonstrated a normal signal content; the vertebral bodies were well maintained; and the perivertebral soft tissues were unremarkable. At the July 1997 VA medical examination, the veteran reported that her neck pain had become less frequent and intense since discharge, even though it was still sufficiently annoying that she used a sling for extension physio therapy. Examination showed no anatomic deformity. The April 1998 VA medical examination found that she had musculoskeletal neck pain without radiculopathic or myelopathic features. She had 5/5 strength throughout the examination. The April 2001 VA medical examination noted, in pertinent part, good sensation in the neck. X-rays taken in conjunction with this examination showed demonstrated loss of cervical lordosis; decreased disc height posteriorly at C6-7; no evidence for osseous foraminal narrowing; and no evidence for subluxation. An MRI conducted in October 2001 noted that the examination had been stable since 1998; that the worst level at C4-5 had actually improved since that time; and that there was disc material posteriorly at other levels without canal stenosis or nerve root effacement. X-rays taken in November 2001 demonstrated no evidence for subluxation; disc space height fairly well preserved throughout; and no foraminal narrowing that was pronounced. The June 2004 VA medical examination demonstrated, in pertinent part, normal curvature of the spine, and no asymmetry. Sensory evaluation at the August 2007 VA medical examination was intact to vibration, light touch, pinprick, and temperature proximally and distally and symmetrical throughout all four extremities. In view of the foregoing, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 20 percent under former Diagnostic Code 5293. In regard to the veteran's limitation of motion, the Board notes that the July 1997 VA medical examination showed forward flexion to 45 degrees; hyperextension to 55 degrees; right and left bending to 50 degrees; and lateral rotation to 70 degrees in each direction. Moreover, all of the range of motion was accomplished without awkwardness or evidence of discomfort. The subsequent April 1998 VA medical examination showed 50 degrees of forward flexion; 10 degrees of backward extension; and 30 degrees of lateral bending. The April 2001 VA medical examination showed the cervical spine had 50 to 60 degrees of flexion, approximately 40 to 50 degrees of extension, axial rotation to 60 degrees in both directions, and lateral bending to about 10 degrees. The June 2004 VA medical examination showed forward flexion to 28 degrees, extension of 23 degrees, left lateral flexion of 24 degrees, right lateral flexion of 22 degrees, left lateral rotation to 60 degrees, and right lateral rotation to 52 degrees. Further, after 10 repetition exercises, she still had the same motion measurements as before even though she had increase in pain. Finally, the August 2007 VA medical examination showed the cervical spine had forward flexion to 30 degrees, extension to 35 degrees, left and right lateral flexion to 35 degrees, left lateral rotation to 50 degrees, and right lateral rotation to 70 degrees. All of these measurements were the same for active and passive motion, and were with pain. Repetitive testing was unchanged from the baseline. Based on the aforementioned range of motion results, the Board finds that the veteran's service-connected cervical spine disorder is not manifested by severe limitation of motion when compared to normal range of motion, nor forward flexion of the spine limited to 15 degrees or less. As such, she does not meet or nearly approximate the criteria for a rating in excess of 20 percent under former Diagnostic Code 5290, nor the current General Rating Formula for Diseases and Injuries of the Spine based upon limitation of motion. In making this determination, the Board wishes to reiterate that it acknowledges the veteran's complaints of pain, and is cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. However, the record does not contain objective evidence by which it can be factually ascertained that there is or would be any functional impairment attributable to the veteran's complaints of cervical spine pain which would warrant a schedular rating in excess of the 20 percent evaluation currently in effect. For example, as noted above, both the June 2004 and August 2007 VA medical examinations found no change in range of motion on repetitive testing. Moreover, the August 2007 examiner also indicated that there was no fatigue, weakness, or incoordination on repetitive testing. The Board also wishes to note that no competent medical evidence is of record which reflects that the veteran has ankylosis of the cervical spine. In fact, the August 2007 VA medical examination specifically indicated that there was no ankylosis. Moreover, the aforementioned range of motion findings confirm that the cervical spine is not fixed in neutral position, nor flexion or extension. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board further finds that the competent medical evidence does not reflect the veteran's service-connected cervical spine disorder has resulted in incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. In fact, the veteran denied any incapacitating episodes during the past 12 months at her August 2007 VA medical examination. For these reasons, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 20 percent for her service-connected cervical spine disorder under any of the potentially applicable Diagnostic Codes, to include on the basis of a staged rating(s). Simply put, there were no distinctive period(s) during the pendency of this case where she satisfied the requisite criteria for a higher rating. Thus, the Board concludes that the preponderance of the evidence is against the claim, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Entitlement to an initial rating in excess of 20 percent for a cervical spine disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs