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