Citation Nr: 0811712	
Decision Date: 04/09/08    Archive Date: 04/23/08

DOCKET NO.  06-17 564A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 
percent disabling for a herniated nucleus pulposis C6-7 with 
narrowing of C3-4 and C4-5 between September 20, 2004, and 
March 21, 2006.

2.  Entitlement to an evaluation in excess of 10 percent 
disabling for a herniated nucleus pulposis C6-7 with 
narrowing of C3-4 and C4-5 on or after March 21, 2006.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Heneks, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1987 to March 
1988 and from July 1991 to December 1991.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from an April 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri, which granted service connection for a 
herniated nucleus pulposis C6-7 with narrowing of C3-4 and 
C4-5 (herein after cervical spine disability).  The veteran 
filed a notice of disagreement (NOD) with that decision in 
May 2005.  The appeal was subsequently transferred to the RO 
in Lincoln, Nebraska, and is now before the Board for 
consideration.  

In November 2007, the veteran presented testimony by the use 
of video conferencing equipment at a hearing conducted at the 
Lincoln RO before a Veterans Law Judge (VLJ) sitting in 
Washington, DC.  A transcript of this hearing is in the 
veteran's claims folder.

The record reflects that the veteran submitted additional 
evidence that had not been reviewed by the RO.  By a November 
2007 statement, the veteran related that he was waiving the 
right to have this additional evidence reviewed by the agency 
of original jurisdiction in accord with 38 C.F.R. § 20.1304.

The Board notes the veteran's contentions made during his 
November 2007 hearing that he had nerve damage in his left 
arm and left hand and appears to ask for compensation for 
left upper extremity radiculopathy.  However, the Board notes 
that in a May 2006 RO decision, the veteran was granted 
service connection for left upper extremity radiculopathy 
with a 10 percent evaluation effective March 20, 2006.  As a 
timely NOD with that decision is not of record, the issue is 
not part of the present appeal.  To the extent that the 
veteran is contending that his service-connected left upper 
extremity radiculopathy has gotten worse since the grant of 
service connection, the Board refers this issue to the RO for 
an necessary development. 

The Board also acknowledges the veteran's November 2007 
statement in which he asked for a temporary evaluation of 100 
percent.  The Board also refers this issue to the RO for any 
necessary development.  


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.

2.  Between September 20, 2004, and March 21, 2006, the 
veteran's herniated nucleus pulposis C6-7 with narrowing of 
C3-4 and C4-5 was not productive of forward flexion of the 
cervical spine greater than 15 degrees but not greater than 
30 degrees; or, the combined range of motion of the cervical 
spine not greater than 170 degrees; or, muscle spasm or 
guarding severe enough to result in an abnormal gait or 
abnormal spinal contour such as scoliosis, reversed lordosis, 
or abnormal kyphosis.  

3.  Effective March 21, 2006, the veteran's herniated nucleus 
pulposis C6-7 with narrowing of C3-4 and C4-5 was productive 
of muscle spasm or guarding severe enough to result in an 
abnormal gait or abnormal spinal contour such as scoliosis, 
reversed lordosis, or abnormal kyphosis but was not 
productive of forward flexion of the cervical spine 15 
degrees or less; or favorable ankylosis of the entire 
cervical spine.  




CONCLUSIONS OF LAW

1.  Between September 20, 2004, and March 21, 2006, the 
criteria for an initial evaluation in excess of 10 percent 
for a herniated nucleus pulposis C6-7 with narrowing of C3-4 
and C4-5 were not met.  38 U.S.C.A. §§ 1155, 5110 (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 
4.71a, Diagnostic Codes 5243 (2007).

2.  Effective March 21, 2006, the criteria for a 20 percent 
evaluation, and no higher, were met for a herniated nucleus 
pulposis C6-7 with narrowing of C3-4 and C4-5.  38 U.S.C.A. 
§§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 
4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5243 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 
38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002).  The notice required must be provided 
to the claimant before the initial unfavorable decision on a 
claim for VA benefits, and it must (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; (3) inform the claimant about the information and 
evidence the claimant is expected to provide; and (4) request 
or tell the claimant to provide any evidence in the 
claimant's possession that pertains to the claim.  
38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.

For an increased-compensation claim, section § 5103(a) 
requires, 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.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  Further, 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.  
Additionally, 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.  Vazquez-Flores, 22 Vet. App. 37.  

Nevertheless, in this case, the veteran is challenging the 
initial evaluation assigned following the grant of service 
connection.  In Dingess, the Court of Appeals for Veterans 
Claims 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.  Id. 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 has been 
satisfied.

In addition, the duty to assist the veteran has also been 
satisfied in this case.  The veteran's service medical 
records as well as all available VA medical records and 
private medical records pertinent to the years after service 
are in the claims file and were reviewed by both the RO and 
the Board in connection with the veteran's claim.  The 
veteran was also afforded VA examinations in April 2005, 
August 2006, and May 2007in connection with his claim for a 
higher evaluation.  VA has further assisted the veteran and 
his representative throughout the course of this appeal by 
providing them a SOC and SSOCs, which informed them of the 
laws and regulations relevant to the veteran's claim.  For 
these reasons, the Board concludes that VA has fulfilled the 
duty to assist the veteran in this case.

To the extent that the veteran testified during his November 
2007 hearing that his service-connected cervical spine 
disability increased in severity since his last VA 
examination in May 2007, the Board concludes that a remand 
for another examination in not necessary.  The duty to assist 
includes, when appropriate, the duty to conduct a thorough 
and contemporaneous examination of the veteran.  Green v. 
Derwinski, 1 Vet. App. 121 (1991).  In addition, where the 
evidence of record does not reflect the current state of the 
veteran's disability, a VA examination must be conducted.  
Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 
§ 3.327(a) (2007).  However, as will be discussed more 
thoroughly below, private treatment records dated in November 
2007 at the time of the veteran's November 2007 hearing do 
not indicate that there has been a material change in the 
severity of the veteran's service-connected disability since 
he was last examined in May 2007.  38 C.F.R. § 3.327(a).  As 
such, a remand for another VA examination is not necessary as 
the record contains adequate evidence on which to rate the 
veteran.  


LAW AND ANALYSIS

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities, found 
in 38 C.F.R., Part 4.  The rating schedule is primarily a 
guide in the evaluation of disability resulting from all 
types of diseases and injuries encountered as a result of or 
incident to military service.  The ratings are intended to 
compensate, as far as can practicably be determined, the 
average impairment of earning capacity resulting from such 
diseases and injuries and their residual conditions in 
civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  
Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
for that rating.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential 
to trace the medical history of the veteran.  38 C.F.R. §§ 
4.1, 4.2, 4.41.  Consideration of the whole-recorded history 
is necessary so that a rating may accurately reflect the 
elements of disability present.  38 C.F.R. § 4.2; Peyton v. 
Derwinski, 1 Vet. App. 282 (1991).  While the regulations 
require review of the recorded history of a disability by the 
adjudicator to ensure a more accurate evaluation, the 
regulations do not give past medical reports precedence over 
the current medical findings.  Where an increase in the 
disability rating is at issue, the present level of the 
veteran's disability is the primary concern.  Francisco v. 
Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that 
staged ratings are appropriate for an increased-rating claim 
when the factual findings show distinct time periods where 
the service-connected disability exhibits symptoms that would 
warrant different ratings.  Hart v. Mansfield, 21 Vet. 
App. 505 (2007).

However, there is a distinction between an appeal of an 
original or initial rating and a claim for an increased 
rating, and this distinction is important with regard to 
determining the evidence that can be used to decide whether 
the original rating on appeal was erroneous.  Fenderson v. 
West, 12 Vet. App. 119, 126 (1999).  For example, the rule 
articulated in Francisco v. Brown--that the present level of 
the veteran's disability is the primary concern in an claim 
for an increased rating and that past medical reports should 
not be given precedence over current medical findings--does 
not apply to the assignment of an initial rating for a 
disability when service connection is awarded for that 
disability.  Fenderson, 12 Vet. App. at 126; Francisco v. 
Brown, 7 Vet. App. 55, 58 (1994).  Instead, where a veteran 
appeals the initial rating assigned for a disability, 
evidence contemporaneous with the claim and with the initial 
rating decision granting service connection would be most 
probative of the degree of disability existing at the time 
that the initial rating was assigned and should be the 
evidence "used to decide whether an original rating on appeal 
was erroneous . . . ."  Fenderson, 12 Vet. App. at 126.  If 
later evidence indicates that the degree of disability 
increased or decreased following the assignment of the 
initial rating, "staged" ratings may be assigned for separate 
periods of time based on facts found.  Id.  

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in the parts of the 
system, to perform the normal working movements of the body 
with normal excursion, strength, speed, coordination, and 
endurance.  It is essential that the examination on which 
ratings are based adequately portrays the anatomical damage 
and the functional loss with respect to all of these 
elements.  In evaluating disabilities of the musculoskeletal 
system, it is necessary to consider, along with the schedular 
criteria, functional loss due to flare-ups of pain, 
fatigability, incoordination, pain on movement, and weakness.  
DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss 
may be due to absence of part, or all, of the necessary 
bones, joints and muscles, or associated innervation, or 
other pathology and evidenced by visible behavior of the 
claimant undertaking the motion.  Weakness is as important as 
limitation of motion, and a part that becomes painful on use 
must be regarded as seriously disabled.  38 C.F.R. § 4.40.  
Pain on movement, swelling, deformity or atrophy of disuse as 
well as instability of station, disturbance of locomotion, 
interference with sitting, standing and weight bearing are 
relevant considerations for determination of joint 
disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or 
malaligned joints, due to healed injury, are entitled to at 
least the minimal compensable rating for the joint.  
38 C.F.R. § 4.59.

Under the General Rating Formula for Diseases and Injuries of 
the Spine, 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 disability evaluation is contemplated when there is 
forward flexion of the thoracolumbar spine greater than 30 
degrees but not greater than 60 degrees; or, forward flexion 
of the cervical spine greater than 15 degrees but not greater 
than 30 degrees; or the combined range of motion of the 
thoracolumbar spine not greater than 120 degrees; or, the 
combined range of motion of the cervical spine not greater 
than 170 degrees; or, muscle spasm or guarding severe enough 
to result in an abnormal gait or abnormal spinal contour such 
as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 
percent evaluation is for assignment when there is forward 
flexion of the cervical spine 15 degrees or less; or 
favorable ankylosis of the entire cervical spine.  

Note 1 to this provision provides that associated objective 
neurologic abnormalities, including, but not limited to, 
bowel or bladder impairment, should be evaluated separately, 
under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, 
General Rating Formula for Diseases and Injuries of the 
Spine, Note (1).

Further, 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.  Normal forward flexion of the thoracolumbar 
spine is zero to 90 degrees, extension is 0 to 30 degrees, 
left and right lateral flexion are zero to 30 degrees, and 
left and right lateral rotation are zero to 30 degrees.  The 
normal combined range of motion range of motion of the 
cervical spine is 340 degrees and of the thoracolumbar spine 
is 240 degrees.  The normal ranges of motion for each 
component of spinal motion provided in this note 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).  
See also 38 C.F.R. § 4.71a, Plate V.

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). 

Under the Formula for Rating Intervertebral Disc Syndrome 
Based on Incapacitating Episodes, a 20 percent disability 
evaluation is contemplated for incapacitating episodes having 
a total duration of at least two weeks but less than four 
weeks during the past 12 months.  A 40 percent disability 
evaluation is assigned for incapacitating episodes having a 
total duration of at least four weeks but less than six weeks 
during the past 12 months.

1.  Entitlement to an initial evaluation in excess of 10 
percent disabling for a herniated nucleus pulposis C6-7 with 
narrowing of C3-4 and C4-5 between September 20, 2004, and 
March 21, 2006.

In considering the evidence of record under the laws and 
regulations as outlined above, the Board finds that the 
veteran is not entitled to an initial evaluation in excess of 
10 percent disabling between September 20, 2004, and March 
21, 2006.  The evidence of record during that period did not 
show forward flexion of the cervical spine greater than 15 
degrees but not greater than 30 degrees; or, the combined 
range of motion of the cervical spine not greater than 170 
degrees; or, muscle spasm or guarding severe enough to result 
in an abnormal gait or abnormal spinal contour such as 
scoliosis, reversed lordosis, or abnormal kyphosis.  In this 
regard, during his April 2005 VA examination, the veteran 
complained of daily pain, stiffness, and weakness in his 
neck.  He reported flare-ups but no functional impairment.  
The veteran denied weight loss, fever, malaise, dizziness, 
bladder, or bowel complaints and used no crutches, braces, 
canes, or special shoes.  Further, he denied any 
incapacitating episodes or bedrest prescribed by a physician.  
The veteran could walk distances and was not unsteady.  
Importantly, the combined range of motion of the cervical 
spine was 310 degrees with pain.  Moreover, there was no 
weakness, fatigability, or incoordination, or decreased range 
of motion after repetitive use.  38 C.F.R. §§ 4.40, 4.45, 
4.59, and DeLuca.  The veteran reported no functional 
impairment with chores.  Further, there was no spasm or 
weakness but some tenderness and pain after repetitive use.  
Although a January 2006 private treatment entry from A.L.M. 
indicated that the veteran had daily problems with muscle 
spasm, the Board finds, the Board finds it significant that 
the veteran did not demonstrate limited motion that met the 
criteria for 10 percent rating and there was no showing of an 
abnormal gait or abnormal spinal contour.  Therefore, when 
considering the evidence of record as a whole during the 
aforementioned period, that the preponderance of the evidence 
did not more nearly approximate the criteria for a 10 percent 
rating.  As such, entitlement to an evaluation in excess of 
10 percent disabling prior to March 21, 2006, is denied.  
38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243.

2.  Entitlement to an evaluation in excess of 10 percent 
disabling for a herniated nucleus pulposis C6-7 with 
narrowing of C3-4 and C4-5 on or after to March 21, 2006.

In considering the evidence of record under the laws and 
regulations as outlined above, the Board finds that the 
veteran is entitled to a 20 percent rating, and no higher, 
effective March 21, 2006.  In this regard, the evidence 
showed symptoms consistent with muscle spasm or guarding 
severe enough to result in an abnormal gait or abnormal 
spinal contour such as scoliosis, reversed lordosis, or 
abnormal kyphosis, but it did not show forward flexion of the 
cervical spine 15 degrees or less; or favorable ankylosis of 
the entire cervical spine.  In this regard, a March 21, 2006, 
private MRI from Dr. J.Q.F. revealed cervical kyphosis at C6-
C7 with slightly progressive mild to moderate cervical 
spondylosis and a July 2006 MRI from Dr. I.F. reflected a 
straightening of the natural cervical lordosis which was 
usually seen with pain or muscle spasm.  

During the August 2006 VA examination, the veteran reported 
stiffness, spasms, pain, fatigue, weakness, cramping, and 
flare-ups.  Upon examination, the veteran had normal posture, 
a symmetric appearance, normal gait, no kyphosis but mild 
reverse lordosis.  There was no atrophy or weakness.  The 
combined range of motion of the cervical spine was 200 
degrees with pain.  Significantly, there was no cervical 
spine ankylosis and forward flexion was to 45 degrees with 
pain beginning at 25 degrees.  Occupational effects were 
identified as decreased mobility, problems with lifting and 
carrying, pain and increased absenteeism.  Although there was 
additional limitation of motion due to pain after repetitive 
use and moderate spasm, mild guarding, moderate pain with 
motion, and mild tenderness, the Board finds that these 
symptoms are contemplated in a 20 percent rating.  38 C.F.R. 
§§ 4.40, 4.45, 4.59, and DeLuca.  During the May 2007 VA 
examination, the veteran denied incapacitating episodes or 
weakness.  The veteran reported no flare ups, fatigue, 
decreased motion, stiffness, weakness, or spasm but the 
veteran did report pain.  There were no incapacitating 
episodes.  There was no spasm, atrophy, guarding, weakness, 
spasm but there was pain with motion and tenderness.  There 
was no abnormal gait or abnormal spine contour.  There was no 
gibbus, kyphosis, list, scoliosis, or reverse lordosis.  The 
veteran had decreased sensation to light touch in the third 
and fourth digits of his left hand with intact motor 
strength.  The veteran's combined cervical range of motion 
was 330 degrees with pain but no additional loss of motion 
after repetitive use.  

Although the veteran contended that he had gotten worse 
during his November 2007 hearing, the Board finds that there 
is sufficient evidence on which to rate his current state of 
disability.  In this regard, a private treatment entry from 
J.S. dated the day after the veteran's hearing reflected that 
he was able to work full time with little or no spasm.  
Although cervical range of motion scores were given, they 
only reflected the range of motion achieved without pain.  
His posture reflected bilateral rounded shoulders and guarded 
upper extremity and cervical mobility.  As such, forward 
flexion of the cervical spine 15 degrees or less or favorable 
ankylosis of the entire cervical spine was not shown.  
Therefore, the preponderance of the evidence more nearly 
approximates the criteria for a 20 percent rating on and 
after March 21, 2006, and no higher.  38 C.F.R. §§ 4.7, 
4.71a, Diagnostic Code 5243.

Additionally, the Board further finds that a separate 
disability rating is not warranted because the objective 
medical evidence does not demonstrate that the veteran 
suffers from a separate neurological disability distinct from 
his service-connected herniated nucleus pulposis C6-7 with 
narrowing of C3-4 and C4-5.  See 38 C.F.R. § 4.71a, General 
Rating Formula for Diseases and Injuries of the Spine, Note 
(1).  The medical evidence of record does not identify any 
separate neurological findings or disability not already 
contemplated under the discussed pertinent criteria.  
Further, the Board notes that the veteran is separately 
service-connected for left upper extremity radiculopathy at 
10 percent disabling and is rated under 38 C.F.R. § 4.124a, 
Diagnostic Code 8515, which is not on appeal and therefore is 
not being considered.  Further, the Board notes that separate 
evaluations for the same symptomatology would constitute 
pyramiding and would not be allowed.  See 38 C.F.R. § 4.14.  
Moreover, a November 2007 private neurological examination 
from Dr. G.L.P., M.D., indicated that left ulnar sensory, 
left radial sensory, and left radial motor were intact.  As 
such, a separate rating under Diagnostic Codes 8514 and 8516 
are not for application.  38 C.F.R. § 4.124a.  In addition, 
the veteran denied bowel or bladder incontinence during his 
VA examinations.  Therefore, the Board concludes that the 
veteran does not suffer from additional neurological 
deficiency so as to warrant a separate disability rating 
under the diagnostic codes pertinent to rating neurological 
disorders.  See Bierman v. Brown, 6 Vet. App. 125,129-132.

In reaching this decision, the potential application of 
various provisions of Title 38 Code of Federal Regulations 
have been considered, whether or not they were raised by the 
veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In 
particular, the Board has considered the provisions of 38 
C.F.R. § 3.321(b)(1).  In this case, however, there has been 
no showing that the veteran's service-connected herniated 
nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 has 
caused marked interference with employment beyond that 
contemplated by the schedule for rating disabilities, 
necessitated frequent periods of hospitalization, or 
otherwise render impractical the application of the regular 
schedular standards utilized to evaluate the severity of his 
disability.  Although the veteran is not currently employed, 
there has been no showing that impact of the veteran's 
cervical spine disability has caused interference with his 
employment beyond that already contemplated by the rating 
criteria.  In fact, the November 2007 record from J.S. dated 
the day after the veteran's hearing reflected that the 
veteran was able to work full time.  In the absence of such 
factors, the Board finds that the requirements for an 
extraschedular evaluation for the veteran's service-connected 
herniated nucleus pulposis C6-7 with narrowing of C3-4 and 
C4-5 under the provisions of 38 C.F.R. § 3.321(b)(1) have not 
been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash 
v. Brown, 8 Vet. App. 218 (1995).


ORDER

Entitlement to an initial evaluation in excess of 10 percent 
disabling for a herniated nucleus pulposis C6-7 with 
narrowing of C3-4 and C4-5 between September 20, 2004, and 
March 21, 2006, is denied.

Entitlement to a 20 percent disabling evaluation, and no 
higher, for a herniated nucleus pulposis C6-7 with narrowing 
of C3-4 and C4-5 on or after March 21, 2006, is granted.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs