Citation Nr: 0812705 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 04-32 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling for degenerative disc disease of the thoracic spine prior to September 26, 2003. 2. Entitlement to an evaluation in excess of 20 percent disabling for degenerative disc disease of the thoracic spine on or after September 26, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from November 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought on appeal. In a February 2005 RO decision, the veteran was granted a 20 percent disability evaluation effective September 26, 2003. The appeal is currently under the jurisdiction of the Muskogee, Oklahoma, RO. However, on a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Since the grant of the 20 percent rating is not a full grant of the benefits sought on appeal, and since the veteran did not withdraw his claim of entitlement to a higher rating, the matter remains before the Board for appellate review. The Board notes that in May 2005, the veteran filed a claim for a low back disability secondary to his service-connected degenerative disc disease of the thoracic spine (hereinafter thoracic spine disability). The Board is cognizant that a development letter was sent in October 2006 and a December 2006 deferred rating decision indicated that adjudication of this issue is deferred pending resolution of the issue currently on appeal. Therefore, the Board refers the issue of entitlement to service connection for a low back disability to the RO for adjudication. In a letter to VA dated in October 2007, the veteran withdrew his request for a travel board hearing. 38 C.F.R. § 20.704(e). Accordingly, the Board will proceed with consideration of this appeal based on the evidence of record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Prior to September 26, 2003, the veteran's degenerative disc disease of the thoracic spine was productive of symptomatology consistent with favorable ankylosis. 3. On or after September 26, 2003, the veteran's degenerative disc disease of the thoracic spine was not productive of forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 4. The veteran's degenerative disc disease of the thoracic spine was not productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past twelve months. CONCLUSIONS OF LAW 1. Prior to September 26, 2003, the criteria for a 20 percent evaluation for degenerative disc disease of the thoracic spine, and no higher, were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5242, 5243, 5288, 5291, 5293 (2002-2007). 2. On or after September 26, 2003, the criteria for a 20 percent evaluation for degenerative disc disease of the thoracic spine were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5242, 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. Letters dated in May 2005 and February 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although these letters were not sent prior to the initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and additional SSOCs were provided to the veteran in July 2005, September 2005, March 2006, and February 2007. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The letters advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. Further, the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. He was specifically advised of the need to submit any evidence in his possession that pertains to the claim. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that "upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application." Dingess/Hartman, 19 Vet. App. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Additionally, 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 the elements of the Vazquez-Flores test have either been met or that any error is not 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) petition for cert. Filed _ U.S.L.W._(March 21, 2008) (No.07A588). 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 hat 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 May 2005, the RO sent the veteran a letter which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about the effect that worsening had on his employment and daily life during the course of the May 2003, January 2005, and November 2006 VA examinations performed in association with his claim. During his November 2006 VA examination, the veteran specifically indicated the impact his disability had on his daily life and employment. The Board finds that the notice given, the questions directly asked and the responses provided by the veteran during his examinations 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 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 a thoracic spine disability. As will be discussed below, his thoracic spine disability was rated under Diagnostic Codes 5291 and 5293, 38 C.F.R. § 4.71a before the regulation change in September 26, 2003, and Diagnostic Code 5242, 38 C.F.R. § 4.71a after the regulation change. Prior to September 26, 2003, Diagnostic Code 5291 indicated that disability ratings were determined by whether a dorsal spine disability was slight, moderate, or severe. Additionally, Diagnostic Code 5293, as does the current Diagnostic Code 5243, relied on the number of incapacitating episodes during a certain period of time. See id. There was no mention of a specific measurement or test result that is required for a higher rating in either diagnostic code. As such, entitlement to a higher disability rating would be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of his thoracic spine disability and the effect of that worsening had on his employment and daily life. However, Diagnostic Code 5242 does refer to a specific measurement or test. The veteran was not provided notice of this as required by Vazquez- Flores, supra. The Board concludes, however, that this error was not prejudicial. The RO provided an opportunity to undergo the necessary test during the veteran's May 2003, January 2005, and November 2006 VA examinations and the veteran did so. Given the nature of the veteran's claim and the fact that the RO scheduled him for examinations in connection with this claim that the veteran underwent, the Board finds that a reasonable person would have known the general requirements necessary to establish a higher rating, including the importance of the range of motion examination. The Board finds that any error in failure to provide Vazquez- Flores element two notice is not prejudicial for the claim for the veteran's service-connected thoracic spine disability. See Sanders, supra. As to the third element, a December 2007 letter also notified the veteran 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 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. That letter indicated that a disability rating can be changed when there are changes in the condition. The letter stated that a rating will be assigned from 0 percent to 100 percent depending on the disability involved and explained that VA uses a schedule for evaluating disabilities that is published in Title 38, Code of Regulations, Part 4. It was also noted that a disability evaluation other than the level found in the schedule for a specific condition can be assigned if the impairment is not adequately covered by the schedule. The December 2007 letter further indicated that evidence of the nature and symptoms of the disability, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment would be considered in determining the disability rating. The Board finds that the December 2007 letter satisfied the third element of Vazquez-Flores and also the requirements of Dingess/Hartman, 19 Vet. App. As to the fourth element, a February 2006 letter did provide notice of the types of evidence, both medical and lay, including statements from the veteran's doctor or x-rays, which could be submitted in support of his claim. The Board finds that the fourth element of Vazquez-Flores is satisfied. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores are met for the claim for an increased rating on appeal. The Board, therefore, finds that the requirements of Pelegrini II are met and that the VA has discharged its duty to notify on the increased ratings for a thoracic spine disability. See Pelegrini II, supra. VA has satisfied its duties to inform and assist the veteran at every stage of this case. All available service medical records as well as all VA 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. VA has also assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to his claim. 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). The RO provided the veteran appropriate VA examinations in May 2003, January 2005, and November 2006. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Further, the Board notes the contentions of the veteran's representative made in February 2008 that the November 2006 VA examination was inadequate because the physician was not an orthopedist. However, the Board finds that the November 2006 VA examination was adequate. The Board notes that the November 2006 VA examiner conducted the necessary tests and addressed the necessary provisions of the rating criteria to include DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the veteran provided information regarding the impact his disability had on his employment and daily life during that examination, as discussed above. As such, the November 2006 VA examination was adequate. 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). 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). 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. The Board notes that during the pendency of this appeal, VA amended the rating schedule for evaluating disabilities of the spine, contained in 38 C.F.R. § 4.71a, which became effective on September 26, 2003. The new criteria for evaluating service-connected spine disabilities are codified at newly designated 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. However, the Board notes that consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C.A. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to September 26, 2003, neither the RO nor the Board could apply the revised rating schedule. The veteran was notified of these regulation changes in the June 2004 SOC. Thus, the Board's decision to proceed in adjudicating this claim does not, therefore, prejudice the veteran in the disposition thereof. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Prior to September 26, 2003, Diagnostic Code 5291 provided for ratings based on limitation of motion of the dorsal spine. When such limitation of motion is slight, a 0 percent rating is warranted. When limitation of motion is moderate or severe, a 20 percent rating is warranted. Diagnostic Code 5288 provided for a 20 percent rating for favorable ankylosis of the dorsal spine or a 30 percent rating for unfavorable ankylosis of the dorsal spine. Under Diagnostic Code 5293 prior to September 26, 2003, intervertebral disc syndrome (preoperatively or postoperatively) was evaluated 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 resulted in the higher evaluation. A 10 percent disability evaluation was assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation was 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 was contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. See Amendment to Part 4, Schedule for Rating Disabilities, Effective September 23, 2002; See 67 Fed. Reg. 54345-54349 (August 22, 2002). An incapacitating episode is defined as 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (3). On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68 Fed. Reg. 166, 51454-51458 (August 27, 2003). Diagnostic Code 5242 also notes that degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under Diagnostic Code 5003. Diagnostic Code 5003 states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Code 5242 (degenerative arthritis of the spine) and the General Rating Formula for Diseases and Injuries of the Spine. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the veteran is already assigned a 10 percent disability evaluation for his service- connected thoracic spine disability, and the medical evidence of record does not demonstrate that involvement of 2 or more major joints or 2 or more minor joint groups. See 38 C.F.R. § 4.45(f). 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 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine not 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. A 20 percent disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar 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) (2007). 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 motions 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) (2007). See also 38 C.F.R. § 4.71a, Plate V (2007). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned 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 evaluation in excess of 10 percent for degenerative disc disease of the thoracic spine prior to September 26, 2003. In considering the evidence of record under Diagnostic Code 5291, the Board notes that 10 percent is the maximum rating under that diagnostic code. However, the Board finds that the preponderance of the evidence showed that the veteran was entitled to a 20 percent rating under Diagnostic Code 5288 because, except for a mere 5 degrees of flexion, the veteran had lack of motion of the thoracic spine consistent with favorable ankylosis. (Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Stedman's Medical Dictionary 93 (26th ed. 1995)). In this regard, a February 2003 VA treatment entry indicated that the veteran had limited flexion of 0 to 45 degrees. During the May 2003 VA examination, however, the examiner indicated that only T6 to T2 allowed for forward bending and the veteran had only 5 degrees of forward flexion limited primarily due to stiffness. Back bending was 0 degrees and there was non- mobility with side bending and shoulder twisting. There was also tenderness to light percussion. Although the veteran's range of motion findings were consistent with favorable ankylosis, the Board finds it significant that unfavorable ankylosis was not indicated. As such, the Board finds that the veteran was entitled to a 20 percent rating, and no higher, for his degenerative disc disease of the thoracic spine prior to September 26, 2003. 38 C.F.R. § 4.7, 4.71a, Diagnostic Code 5288. 2. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the thoracic spine on or after September 26, 2003. In considering the evidence under the laws and regulations as set forth above, the Board finds that the veteran was not entitled to a rating in excess of 20 percent disabling on or after September 26, 2003. In this regard, forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine was not shown. In this regard, the January 2005 VA examination noted that the veteran had flexion of 40 degrees with pain. Physical examination revealed tenderness at the T8-T12 level with some spasm and the veteran reported daily lower thoracic region pain. Although the VA examiner indicated that the veteran had very little motion in the thoracic spine, the Board finds it significant that the veteran had no other motions (besides flexion)in the lumbar spine because of pain. The Board must emphasize that the veteran is not service-connected for his lumbar spine. As such, only thoracic spine symptomatology can be considered for rating purposes. During the November 2006 VA examination, forward flexion was 0 to 45 degrees with pain with full flexion and lateral flexion and rotation was 0 to 20 degrees with pain. The veteran had normal thoracic spine curvature and tenderness to touch but no paravertebral muscle spasm or tenderness. As such, the evidence of record did not more nearly approximate the criteria for a rating in excess of 20 percent disabling. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the veteran's thoracic spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the veteran's symptoms are supported by pathology consistent with a 20 percent rating for the entire appeal period, and no higher. In this regard, the January 2005 VA examination indicated that there were no increased limitations with flare-up or repetitive motion. Although the veteran described chronic aching pain in the inner scapular area which was aggravated by essentially any activity, the Board finds that these complaints are already contemplated in the assigned 20 percent rating. Further, the November 2006 examiner noted that there were no flare-ups or changes in range of motion with repetitive movements. The veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the veteran's thoracic spine. In considering the evidence of record for the entire appeal period under Diagnostic Code 5293 as set forth above, the Board finds that the evidence of record does not establish entitlement to an increased evaluation for the veteran's service-connected thoracic spine. January 2003 VA x-rays indicated that the veteran had degenerative osteoarthritis and degenerative disk disease in the mid to upper portion of the thoracic spine. However, there was no showing of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months due to the thoracic spine. There was no showing that the veteran had been prescribed bed rest by a physician. In fact, during the November 2006 VA examination, the veteran reported no acute flare-ups or any episodes of incapacitating pain. As such, entitlement to an evaluation in excess of 20 percent has not been shown at any time during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Further, when considering the evidence of record under 38 C.F.R. § 4.71a, Diagnostic Code 5243 effective September 26, 2003, the evidence does not establish entitlement to an increased evaluation for the veteran's service-connected thoracic spine. Again, there was no showing of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months due to the thoracic spine. As such, entitlement to an evaluation in excess of 20 percent has not been shown under 38 C.F.R. § 4.71a, Diagnostic Code 5243. After reviewing the record, 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 thoracic spine disability. The medical evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. In fact, during the January 2005 VA examination, the veteran was found to be continent and potent. Further, a February 2005 VA MRI of the thoracic spine revealed no signs of canal stenosis or cord compression. 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 (1994). 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 thoracic spine has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. In fact, during the May 2003 VA examination, the examiner indicated that the veteran could work as a pastor as long as he did not do strenuous lifting or exercise. Moreover, the January 2005 VA examiner indicated that the veteran only worked twelve days in the last year due to his low back, for which the veteran is not service-connected. Further, the Board finds it significant that the November 2006 VA examiner noted that the veteran stopped working in August 2005 due to his non-service connected coronary artery disease. As such, the Board concludes that the veteran's service-connected thoracic spine disability has not interfered with employment beyond the regular schedular criteria nor that his service-connected thoracic spine rendered him unemployable. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the veteran's service-connected DDD of the thoracic spine 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 a 20 percent evaluation, and no higher, for degenerative disc disease of the thoracic spine prior to September 26, 2003, is granted. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the thoracic spine on or after September 26, 2003, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs