Citation Nr: 0812213 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-13 945A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an evaluation in excess of 20 percent disabling for degenerative arthritis of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from February 1959 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 RO decision, which granted an increased rating of 20 percent for the veteran's degenerative arthritis of the cervical spine. The Board remanded this case in October 2006 to provide the veteran with a hearing. This case was again remanded in August 2007 to locate additional VA treatment records and to schedule the veteran for a VA examination. In June 2007, a video hearing was held before the undersigned Veterans Law Judge at the Chicago, Illinois RO. A transcript of that proceeding has been associated with the claims folder. FINDING OF FACT The veteran's service-connected degenerative arthritis of the cervical spine is manifested by forward flexion of 30 degrees, extension of 30 degrees, left lateral flexion of 30 degrees, right lateral flexion of 30 degrees, left lateral rotation of 75 degrees, right lateral rotation of 75 degrees, and complaints of pain; the veteran does not have favorable or unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for service-connected degenerative arthritis of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5010, 5290 (effective prior to September 26, 2003); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5010, 5242 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA letter issued in September 2003 specifically satisfied the second and third elements of the duty to notify, articulated above. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. With specific regard to the fourth element, viz., that the claimant should provide any evidence relevant to the claim in his possession to VA, it is noted that the aforementioned letter essentially informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claim. Accordingly, the Board concludes that any failure to provide VCAA compliant notice in this regard was harmless. See Sanders v. Nicholson, 487 F.3d 881 (2007). In order to satisfy the first Pelegrini II element for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) 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 of 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; (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; (4) 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 v. Peake, 22 Vet. App. 37 (2008). For the following reasons, the Board finds that any defects with regard to the Vazquez-Flores test are non-prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez- Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In September 2003, the RO sent the veteran a VCAA letter, which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about his employment and daily life, during the course of the December 2003 VA examination performed in association with this claim. The veteran provided statements at this examination, in which he details the current effects of this disability. The Board finds that the notice given, the questions directly asked, and the responses provided by the veteran show that he knew that the evidence needed to show that his disability had worsened and what impact that had on his employment and daily life. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez-Flores. As to the second element, the Board notes that the veteran is service-connected for degenerative arthritis of the cervical spine. As will be discussed below, the veteran's degenerative arthritis of the cervical spine is rated under 38 C.F.R. 4.71a, Diagnostic Code 5010-5290. Entitlement to a higher disability rating would be satisfied by evidence demonstrating a noticeable worsening or increase in severity of the disability and the effects that worsening has on the claimant's employment and daily life. See id. The Board finds that no more specific notice is required of VA and that any error in not providing the rating criteria is harmless. See Vazquez-Flores. While notification of the specific rating criteria was provided in the March 2005 statement of the case (SOC) and the April 2006 supplemental statement of the case (SSOC), and not a specific preadjudicative notice letter, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). As to the third element, the Board notes that the veteran was not provided a notice letter that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment and daily life. See Vazquez-Flores. The Board notes that the ratings schedule is the sole mechanism by which a veteran can be rated, excepting only referral for extraschedular consideration and special monthly compensation. See 38 C.F.R. Part 4 (2007). Neither the Board nor the RO may disregard the schedule or assign ratings apart from those authorized by the Secretary and both must apply the relevant provisions. Id. As such, notice to the veteran that the rating schedule will be applied to the symptomatology of his disability has no impact on the fundamental fairness of the adjudication because it refers to legal duties falling upon VA, not upon the veteran, and cannot be changed. The Board finds that the error in the third element of Vazquez-Flores notice is not prejudicial. See Sanders, supra. As to the fourth element, the September 2003 letters did provide notice of the types of evidence, both lay and medical, that could be submitted in support of his claim. The Board finds that the fourth element of Vazquez-Flores is satisfied. See id. In light of the foregoing, the Board finds that any notice defect as to the requirements of Vazquez-Flores are nonprejudicial. The Board, therefore, finds that VA has discharged its duty to notify. See Pelegrini II, supra. In addition, the Board notes that the veteran was given appropriate notice according to Dingess in the April 2006 SSOC. The Board also concludes VA's duty to assist has been satisfied. The veteran's available service, private, and VA medical records are in the file. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the veteran with a VA examination for his degenerative arthritis of the cervical spine in December 2003. The Board notes that the veteran was scheduled for a new VA examination in September 2007. However, he failed to report for this examination. The veteran was notified in the August 2007 Board remand that failure to report for any scheduled examination may result in the denial of the claim, as specified under 38 C.F.R. § 3.655. No just cause was offered for his absence at this examination. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder, and has an obligation to provide reasons and bases supporting this decision. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2007). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2007). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The veteran was granted service connection for degenerative arthritis of the cervical spine and assigned an evaluation of 10 percent, effective May 15, 1984, under Diagnostic Codes 5003-5290. A March 2004 rating decision increased the veteran's evaluation from 10 percent to 20 percent, effective August 29, 2003, under Diagnostic Codes 5010-5290. Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2007). Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). During the pendency of this appeal, VA amended the rating schedule for evaluating disabilities of the spine under 38 C.F.R. § 4.71a. These revisions, codified in Diagnostic Codes 5235 through 5243, became effective on September 26, 2003. 61 Fed. Reg. 51,457; 68 Fed. Reg. 51,458 (Aug. 27, 2003); See also 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2007). The new criteria include a revision of 38 C.F.R. § 4.71a, to include Plate V, Range of Motion of Cervical and Thoracolumbar Spine. The Board is required to consider the claim in light of both the former and revised schedular rating criteria. VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. However, both the old and the new regulations will be considered for the period after the change was made. See VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g) (West 2002). The Board will begin its analysis with the old regulations. Diagnostic Code 5287, applicable prior to September 26, 2003, assigns a 30 percent evaluation for favorable ankylosis of the cervical spine and a 40 percent evaluation for unfavorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2002). Diagnostic Code 5290, applicable prior to September 26, 2003, assigns a 10 percent evaluation for slight limitation of motion of the cervical spine and a 20 percent evaluation for moderate limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). A maximum 30 percent evaluation is assigned for severe limitation of motion. Id. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2007). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2007). Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine. Diagnostic codes for all diseases and injuries to the spine were renumbered. Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater that 60 degrees but not greater that 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater that 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. A 20 percent rating 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 combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2007); see also Plate V. 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. Id. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Id. 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. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The veteran underwent a VA examination in December 2003. At this examination, he complained of "terrible" neck pain and was diagnosed with ankylosing spondylitis of the cervical spine. His ranges of motion were recorded as follows: 30 degrees forward flexion, 30 degrees extension, 30 degrees left lateral flexion, 30 degrees right lateral flexion, 75 degrees left lateral rotation, and 75 degrees right lateral rotation. At this time, it was noted that the veteran could flex, extend, and rotate his neck without pain and without weakness. Lateral bending resulted in mild pain with no weakness. The examiner also noted no palpable spasm in the neck. X-rays showed anterior fusion from C5 to C6 and from C6 to C7 by anterior spurs. The neck was reported as having moderate lack of endurance and no lack of coordination. No evidence of nerve impairment was found. In a VA Medical Center (VAMC) treatment record from November 2004, the range of motion of the veteran's cervical spine was reported as being two-thirds of the normal range of motion for the cervical spine. In February 2005, a private physician noted that x-rays of the veteran's cervical spine revealed advanced disc space narrowing C6-C7 with facet sclerosis. See M.R.F, M.D. treatment record, February 2005. In April 2005, the veteran complained of cervical spine pain, stiffness, and occasional radicular symptoms. See VAMC treatment record, April 2005. On physical examination, decreased range of motion of the veteran's cervical spine was noted, with no radicular symptoms. Id. In September 2006, it was noted that the range of motion of the veteran's cervical spine was limited in all directions by about one- third. See VAMC treatment record, September 2006. In March 2007, it was noted that the veteran's spine had no gross deformities and minimal range of motion because of low back pain secondary to osteoarthritis with no costovertebral angle tenderness. See VAMC treatment record, March 2007. The Board notes that the last recorded measurement of forward flexion of the veteran's cervical spine is 30 degrees, as noted in the December 2003 VA examination. In addition, the Board notes that the veteran's range of motion for his cervical spine was reported as being limited by one-third in all directions in VAMC treatment notes from November 2004 and September 2006. This estimation would place the veteran's forward flexion of his cervical spine at approximately 30 degrees. As mentioned above, the Board is required to consider the veteran's claim in light of both the former and revised schedular rating criteria. The veteran was diagnosed with ankylosing spondylitis of the cervical spine at the December 2003 VA examination. The veteran has not been diagnosed with either favorable or unfavorable ankylosis of the entire cervical spine. Therefore, a higher rating may not be awarded under Diagnostic Code 5287, as applicable prior to September 26, 2003. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2002). In regards to applying Diagnostic Code 5290, applicable prior to September 26, 2003, the Board acknowledges that the veteran has limitation of motion of the cervical spine. However, there is no indication in the evidence of record that the veteran's limitation of motion of the cervical spine has reached the level of being severe in nature. With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the veteran's assertions of chronic neck pain. See veteran's statement, August 2004. In order to warrant a higher evaluation through consideration of these provisions, the record would have to contain some objective evidence of additional functional impairment due to such factors as pain and fatigability. No such objective evidence has been submitted. While the examiner at the December 2003 VA examination stated that a significant restriction of the veteran's activity level was indicated, he also stated that the veteran had no lack of coordination, only moderate lack of endurance, and no weakness or pain upon flexion, extension, and rotation. The Board finds that the veteran is properly compensated for any functional restriction with the currently assigned 20 percent rating. Under the new criteria, a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine requires limitation of flexion of the cervical spine to 15 degrees of less or favorable ankylosis of the entire cervical spine. The objective findings, to include the December 2003 VA examination on file, are well above 15 degrees. As discussed, there is no evidence of any ankylosis of the entire cervical spine. As such, a 30 percent rating is not warranted under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). Application of codes (new or old versions) pertaining to strain or intervertebral disc syndrome is unnecessary as the Board notes that the evidence of record does not demonstrate that either the veteran has such disabilities or that they are related to his service-connected arthritis of the cervical spine. 38 C.F.R. § 4.71a (2007). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, as discussed above; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 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). The Board acknowledges the veteran's contention that his degenerative arthritis of the cervical spine is deserving of a higher rating. See notice of disagreement, July 2004. The veteran can attest to factual matters of which he had first- hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, or undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding severity of his disability are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In sum, entitlement to a higher rating under the new or old schedular criteria is not warranted. The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an evaluation in excess of 20 percent disabling for degenerative arthritis of the cervical spine is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs