Citation Nr: 0813675 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-00 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for benign tremor of the right upper extremity, for the period before January 22, 2007. 2. Entitlement to an evaluation in excess of 40 percent for benign tremor of the right upper extremity, for the period on and after January 22, 2007. 3. Entitlement to an evaluation in excess of 20 percent for benign tremor of the left upper extremity, for the period before January 22, 2007. 4. Entitlement to an evaluation in excess of 30 percent for benign tremor of the left upper extremity, for the period on and after January 22, 2007. 5. Entitlement to an evaluation in excess of 20 percent for cervical strain with osteoarthritis. 6. Entitlement to an evaluation in excess of 10 percent for lumbar and thoracic strain with osteoarthritis and disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from July 1975 to June 1981 and from January 1989 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO granted service connection for benign tremor of the upper extremities and for cervical strain, each assigned non-compensable evaluations; and for lumbar strain, for which a 10 percent evaluation was assigned. Although subsequently, increased evaluations have been granted for the disabilities of the upper extremities and cervical spine, the veteran has continued to pursue increased ratings for these conditions, and all of the aforementioned claims therefore remain in appellate status. In June 2007, the veteran withdrew from appellate consideration increased rating claims for migraine headaches and toenail onychomycosis. In addition, the veteran had raised a service connection claim for paresthesia of the trigeminal nerves due to oral surgery. That claim was initially denied in a January 2007 rating action, following which the veteran filed a Notice of Disagreement in May 2007. Before a Statement of the Case (SOC) was even issued, the claim was readjudicated and granted in an August 2007 rating action, with separate 10 percent evaluations assigned for the right and left mandibular divisions, effective from April 2004. The August 2007 rating action has not been appealed as to either the disability rating(s) or effective date assigned. Both these matters are considered "downstream" from the issue of service connection; and a separate, jurisdiction-conferring notice of disagreement would be needed with regard to any "downstream" issues arising from the award of service connection for paresthesia of the trigeminal nerves due to oral surgery. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Since, to this point, the veteran has not disagreed with the ratings or effective date assigned; neither of those issues is currently before the Board on appeal. The veteran testified at a travel Board hearing held before the undersigned Veterans Law Judge in July 2007. A transcript of the hearing has been associated with the claims folder. FINDINGS OF FACT 1. For the period prior to January 22, 2007, the veteran's benign tremor of the right upper extremity was productive of moderate incomplete paralysis. 2. For the period prior to January 22, 2007, the veteran's benign tremor of the left upper extremity was productive of moderate incomplete paralysis. 3. For the entirety of the appeal period; i.e. from February 1, 2003, forward; the benign tremors of both upper extremities have not been productive of more than moderate incomplete paralysis. 4. Prior to January 22, 2007, the veteran's disability of the cervical spine was manifested by pain and no more than moderate limitation of motion, with forward flexion of the cervical spine to more than 15 degrees and without evidence of favorable ankylosis of the entire cervical spine, nor does it involve incapacitating episodes having a total duration of at least four weeks during the past 12 months. 5. Severe limitation of motion of the cervical spine was demonstrated upon VA examination of January 22, 2007. 6. The veteran's service connected lumbar and thoracic strain with osteoarthritis is manifested by muscle spasm, pain, forward flexion always greater than 60 degrees and combined range of motion of greater than 200 degrees. There is no evidence of loss of lateral spine motion, positive Goldthwaite's sign, listing to one side, marked limitation of forward bending in standing position, or loss of lateral motion with osteo-arthritic changes or narrowing or irregularity of joint space. CONCLUSIONS OF LAW 1. For the portion of the appeal period prior to January 22, 2007, the criteria for a rating of 40 percent for benign tremor of the right upper extremity have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2007). 2. For the portion of the appeal period prior to January 22, 2007, the criteria for a rating of 30 percent for benign tremor of the left upper extremity have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2007). 3. For the entirety of the appeal period (extending from February 1, 2003, forward) the criteria for a rating in excess of 40 percent for benign tremor of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2007). 4. For the entirety of the appeal period (extending from February 1, 2003, forward), the criteria for a rating in excess of 30 percent for benign tremor of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2007). 5. A rating in excess of 20 percent for cervical strain with osteoarthritis is not warranted for the portion of the appeal period prior to January 22, 2007. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5290 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 and 5243 (2007). 6. For the portion of the appeal period extending from January 22, 2007, forward, a rating of 30 percent is warranted for cervical strain with osteoarthritis. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5290 (2003). 7. The criteria for an evaluation greater than 10 percent for lumbar and thoracic strain with osteoarthritis and disc disease are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002); 38 C.F.R. § 4.71a, 5237, 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Following receipt of the veteran's original service connection claims for nerve disorders of the upper extremities as well as for disorders of the cervical and lumbar spines, a duty to assist letter was issued to him in April 2003. That letter advised the veteran of VA's duty to assist him in developing his claims for service connection and of the types of evidence he could submit to substantiate his claims (i.e., medical records for treatment since service, but especially records for treatment in the past year). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA 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. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (holding that proper section 5103(a) notice includes notice as to the degree of disability aspect of the claim). With the initial-disability-rating element of a claim for service-connected disability compensation, section 5103(a) pre-adjudicatory notice regarding an initial disability rating must be provided: [T]he Secretary must, at a minimum, notify the claimant that, should service connection be awarded, a schedular or extraschedular disability rating will be determined by applying relevant [DCs] in the rating schedule, found in title 38, Code of Federal Regulations, to provide a disability rating from 0% to as much as 100% (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. Moreover, consistent with the statutory and regulatory history, that notice must provide examples of the types of medical and lay evidence that the claimant could submit (or ask [the Secretary] to obtain) that are relevant to establishing a disability - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing exceptional circumstances relating to the disability. Dingess, 19 Vet.App. at 488 (citing 66 Fed. Reg. 45,620, 45,622 (Aug. 29, 2001)). In this case, a letter to the veteran in December 2006 provided such notice. That letter advised the veteran that he could submit evidence showing his service-connected disabilities had increased in severity, and that such evidence might be a statement from his doctor or lay statements as to personal observations. He was also asked to provide VA with information as to where he had received medical treatment and to submit any pertinent evidence in his possession to VA. He was again advised of VA responsibilities in developing his claims, and he was also advised how VA determines the appropriate disability rating to assign to a service-connected disability and how VA determines the effective date. As part of that notice, he was informed that disability ratings are assigned based on the nature and symptoms of the condition; the severity and duration of the symptoms; and the impact of the condition and symptoms on employment. He was advised to submit evidence that might affect the assigned disability evaluation, such as, information about treatment, statements from employers, or lay statements. Clearly the Dingess notice was not provided until after the veteran's initial service connection claims were adjudicated. 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. In order to demonstrate 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 this case, as in Dunlap, unlike a case where a claim for service connection has been denied, there was sufficient information and evidence to award service connection and assign an effective date and an initial disability rating- that is, the veteran's claims had already been more than substantiated. When a claimant then disagrees with VA's initial VA determination as to either the disability rating or effective date assigned, other statutory and regulatory provisions, particularly 38 U.S.C.A. §§ 5104(a), 7105(d)(1), and 5103A, are in place requiring VA to assist and advise a claimant throughout the remainder of the adjudication process. The Court has held that once a claim has been proven and service connection granted (with a corresponding disability rating and effective date assigned), the claim has been substantiated and the claimant has been provided a meaningful opportunity to participate effectively in the processing of his or her claim. See Dingess, 19 Vet.App. at 491. Prejudice has not been shown in this case. Neither the veteran nor his representative have argued that the failure to provide Dingess notice prior to adjudication of the claims somehow affected the fairness of the following proceedings. More importantly, a timing error may be cured by a new VCAA notification followed by a readjudication of the claim. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006); see also Medrano v. Nicholson, 21 Vet.App. 165, 169 (2007) (Secretary "may cure timing defects by issuing a fully compliant [section 5103(a)] notification and then readjudicating the claim"). In this case, there was readjudication of the claims following the 2006 Dingess letter in a supplemental statement of the case. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Board notes, incidentally, that additional notice is required under section 5103(a) for claims for increased ratings. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, as the Court clearly noted in Vazquez, the additional notice requirements apply only to claims for increased compensation. In cases such as this, involving initial disability ratings, the notice requirements of Dingess apply, and, as discussed more fully above, were complied with in this case. Accordingly, the duty to notify has been fully met in this case and the veteran was made aware that it was ultimately his responsibility to give VA any evidence pertaining to his claims. The Board also concludes VA's duty to assist has been satisfied. The veteran's pertinent service medical records and post-service private and VA medical records are in the file and he has undergone several medical evaluations from 2002 forward. In addition, he provided testimony at travel Board hearing held in July 2007 and thereafter he presented additional evidence for the record which was accompanied by a waiver. There is no indication from the claimant that he has any additional evidence in his possession, but not associated with the record, that is needed for a full and fair adjudication of the claims or that he is aware of any other evidence which might be relevant. Both the duty to assist the veteran and the duty to notify the veteran have been met. Accordingly, the Board finds that there is no reasonable possibility that further assistance would aid the veteran in substantiating the claims, and the veteran has not indicated that he has any additional evidence or information to provide in support of his claims. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Factual Background The veteran filed his original service connection claims for a nerve disorder and for disorders of the cervical and lumbar spines in October 2002, prior to his separation from service. A VA general medical examination was conducted in November 2002. The veteran complained of a several year history of tremors in the upper extremities causing difficulty with coordination, writing and using tools. On examination, there was evidence of tremors of both hands, which could not be stopped, even at rest. Neurological evaluation revealed that cranial nerves II through XII were intact and symmetric. Finger movements revealed some impairment. Benign tremor of the upper extremities was diagnosed. On VA examination in November 2002, the veteran also complained of strain from the cervical to the lumbar spine without radicular symptoms, and with discomfort with activity. On examination there was no tenderness and no muscle spasms. It was noted that the veteran had full painless motion of the cervical spine with range of motion of 60 degrees of flexion; 70 degrees of extension; lateral bending of 40 degrees bilaterally; and rotation of 85 degrees bilaterally. Range of motion testing of the lumbar spine revealed 90 degrees of flexion; 30 degrees of extension; lateral bending of 40 degrees bilaterally; and rotation of 35 degrees bilaterally, with mild pulling sensation. Range of motion testing of the thoracic spine revealed 50 degrees of flexion; 40 degrees of extension; and rotation of 30 degrees bilaterally. Impressions of mild cervical and lumbosacral strain without functional impairment and normal examination of the thoracic spine, were made. In an August 2003 rating action, the RO granted service connection for lumbar strain for which a 10 percent evaluation was assigned, and for benign tremor of the upper extremities and for cervical strain, each assigned a noncompensable evaluation, all effective from February 1, 2003, the day after the veteran's discharge from service. On file is a private medical statement of Dr. S. dated in June 2003. It was noted that the veteran had noticed having tremors of the upper extremities for years. It was reported that the tremors affected his writing but that he was able to carry out daily activities without difficulty. It was reported that Neurotin had been prescribed, which had helped with migraine headache symptoms, but not with the tremors. Motor examination revealed fine tremors of both hands. Sensory examination was normal. The impressions included essential tremor and the veteran's medication was changed from Neurotin to Inderal. Private medical records of Dr. L. dated from August 2003 to April 2004 show that the veteran was being followed for his tremors and that his medication was changed from Inderal to Topamax, because Inderal was causing insomnia. A VA examination was conducted in August 2004 and the claims folder was reviewed. The veteran reported that he received chiropractic treatment about 10 times a month. It was noted that he could walk, sit or stand for about 5 minutes before back symptoms arose. Symptoms and pain, estimated as ranging from 6 to 9/10 in the cervical spine and 3 to 10/10 in the lumbar spine, were reported and it was noted that he used a lumbar brace. The veteran denied having any radiculopathy or bowel/bladder incontinence. Physical examination revealed normal gait. It was reported that the veteran's cervical spine had range of motion of 45 degrees of flexion without pain; 30 degrees of extension with symptoms of pain and spasms; rotation of 40 degrees (right, with pain) and 50 degrees (left, without pain ), and 35 degrees of lateral flexion bilaterally without pain. Deep tendon reflexes of the upper and lower extremities were 0/4 bilaterally and strength of the upper and lower extremities was 5/5. Examination of the thoracic and lumbar spine revealed increased lordosis with no increased kyphosis. Range of motion testing revealed 100 degrees of flexion without pain; 25 degrees of extension without pain; lateral bending of 30 degrees bilaterally; and rotation of 30 degrees bilaterally, with pain. X-ray films of the cervical spine revealed osteoarthritis with muscle spasm. X-ray films of the lumbosacral spine revealed osteoarthritis. The assessments included: chronic cervical, thoracic and lumbar strain superimposed on degenerative disc disease (DDD). The examiner noted that occasional acute spasm and strain could be expected which might limit range of motion of the cervical and lumbar spine no more than 10 degrees. The examiner also observed that no neurological deficit, gait disturbance, or upper and lower extremity weakness would be expected secondary to the spinal conditions. A VA examination for neurological disorders was conducted in September 2004. It was explained that the veteran suffered from bilateral upper extremity postural and action tremors, which had been present for several years. The report mentioned that numerous medications had been tried, including beta blockers and Mysoline, with unacceptable side effects. Cranial nerves II through XII were individually tested and were intact. Muscle strength testing in the upper and lower extremities was 5/5. Reflexes were 2+ and symmetric. Finger to nose testing was normal with slight mild tremor. Low frequency tremor of the upper and lower extremities was present on standing. Benign essential tremor was diagnosed and the examiner opined that this likely interfered with the veteran's life to a mild degree, such as affecting his writing. The file contains a private medical statement of Dr. P., the veteran's chiropractor, dated in September 2004. Dr. P. stated that the veteran had a degenerative disk at L5-S1 which caused pain, disability and flare-ups occurring about 6 times a year. The doctor noted that conservative treatment was becoming less effective. In a Statement of the Case issued in November 2004, increased evaluations of 20 percent for tremors of each upper extremity and a disability of the cervical spine were granted effective from February 1, 2003. A 10 percent evaluation was confirmed and continued for thoracic and lumbar strain with osteoarthritis and disc disease, also effective from February 1, 2003. Private medical records of Dr. L. show that the veteran was seen in July 2005 with complaints of back pain related to an industrial injury. The veteran complained of pain on movement or twisting, relieved by rest. He denied having symptoms of radiation down the arm, weakness in the upper extremities and loss of bowel/bladder control. It was noted that low back pain episodes occurred every few years, associated with a straining event. Range of motion testing revealed 90 degrees of flexion; 20 degrees of extension; lateral bending of 30 degrees (right) and 40 degrees (left); and rotation of 40 degrees bilaterally. Strength in the lower extremities was 5/5 and straight leg raising test was negative for radicular pain. Paraspineal muscle spasm over T8-9 was noted. An assessment of thoracic back strain without radicular component was made. The veteran was seen by Dr. H. in March 2006 for evaluation of his hand tremors. The history indicated that the veteran had experienced symptoms of continuous shaking for 4 to 5 years getting progressively worse, worse on the left side, and interfering with dexterity and writing. It was noted that he did not have tremors of the limbs or elsewhere and had no slowing of movements or problems with disequilibrium, dysphagia or speech. Examination revealed a 5 Hz sustentation tremor with greater amplitude on the left side. The veteran was able to hold a note without wavering and did not have action or rest tremor. The assessments included essential tremor. Records of Dr. L. also reflect that the veteran was seen for a follow-up for essential tremor in February 2006. That record stated that the veteran was doing well on Diazepam which could suppress tremors when the veteran needed to do a lot of writing. Neurological evaluation revealed a very fine bilateral postural tremor. The veteran presented a statement dated in January 2007 documenting the medications he was taking for various disabilities which included; Diazepam (tremors) Carisoprodol (back and neck pain) and Propranolol, Topomax and Verapamil (headaches and tremors, reportedly causing the side effect of insomnia). A VA neurological evaluation was conducted in January 2007, but the claims folder was not available for review. The veteran complained of pain with certain neck movements. He reported having flare-ups occurring 2 to 3 times a month (described as moderate to severe) and lasting 3 to 4 days at a time, brought on by sleep or repetitive motion. The report stated that range of motion was decreased by more than 50% with flare-ups, but without significant impact on daily activities. The veteran had missed 1 day of work during the last 12 months due to this problem, and it was commented that employment capacity was not affected due to it. The report documented right-sided radicular symptoms with flare-ups, which had not been persistent. It was reported that he had not needed any assistive devices and had experienced an incapacitating episode only once (lasting 2 days) during the last 12 months. Physical examination of the neck/cervical spine revealed tightness over the trapezius. There was no tenderness to palpation. Range of motion was limited to 0 to 20 degrees forward flexion; 0 to 20 degrees extension; lateral flexion of 0 to 20 degrees to both directions and lateral rotation of 0 to 40 degrees in both directions. It was reported that pain occurred at maximum range of motion testing in each direction, and that repetitive range of motion testing revealed increased pain, but no further decreased motion. It was further noted that range of motion was limited by pain, but not by fatigue, weakness, or lack of endurance on repetitive use. X-ray films revealed scattered minimal DDD. An impression of cervical strain superimposed on minimal cervical spine DDD was made and it was commented that employability was not affected due to this problem. The veteran's tremors were also evaluated during the January 2007 VA examination. He reported having trouble writing and using utensils. It was noted that he had not missed work with US Customs due to this problem. Examination of the hands revealed significant tremor with any use. The examiner observed that it took over a minute for the veteran to write his name and noted that it was barely legible. It was reported that he was able to do finger-to-nose testing with some difficulty. Severe benign essential tremor of both upper extremities was diagnosed and it was commented that the veteran was unable to use medications for this due to side effects. Also evaluated by VA in January 2007 was lumbar and thoracic spine strain with osteoarthritis and disc disease. The veteran denied having lumbar spine problems and indicated that pain was in the thoracic area only, with tightness in that area. He reported having a mild to severe flare-up occurring once a week, lasting from 2 days to a week. Range of motion was reportedly decreased by more than 50% when symptomatic. It was noted that the veteran had not needed any assistive devices, did not have radicular symptoms, and had not had any incapacitating episodes. It was commented that employability was not limited, as the veteran had a non-physical job. Physical examination of the back revealed mild tenderness to palpation in the mid-thoracic area with no tenderness of the lumbar spine. Range of motion was evaluated overall as normal with 0 to 90 degrees forward flexion; 0 to 30 degrees extension; lateral flexion of 0 to 30 degrees in both directions and lateral rotation of 0 to 30 degrees in both directions. It was reported that repetitive range of motion testing did not cause pain or decrease the range of motion. It was further noted that range of motion was not limited by pain, fatigue, weakness, or lack of endurance on repetitive use. X-ray films of the thoracic spine revealed scattered minimal DDD. An impression of thoracic strain superimposed on minimal scattered thoracic DDD was made and it was commented that employability was not affected due to this problem. In a Supplemental Statement of the Case (SSOC) issued in January 2007, increased evaluations of 30 (left-minor) and 40 (right-major) percent for tremors of each upper extremity were granted effective from January 22, 2007; a 20 percent evaluation was confirmed and continued for cervical strain with osteoarthritis effective from February 1, 2003; and a 10 percent evaluation was confirmed and continued for thoracic and lumbar strain with osteoarthritis and disc disease, also effective from February 1, 2003. The veteran presented testimony at a travel Board hearing held in July 2007. He testified that his tremors resulted in problems with writing and dexterity, and were an imposition during the course of his employment which requires him to search baggage. The veteran stated that he was right handed. With regard to the back, it was estimated that his pain level was 6/10 and indicated that he experienced 6 to 8 incapacitating episodes a year, and missed about 20 work days a year. He reported that cervical spine pain radiated from the neck to the back and indicated that this condition was treated privately by Dr. L. The veteran reported having incapacitating episodes involving the cervical spine once a month and indicated that he had missed about 15 work days due to this condition. He mentioned that twice a month he saw a chiropractor, but did not receive shots or injections. The veteran reported that his tremors had slightly worsened since leaving service in 2003, but indicated that he had no grip loss. Following the hearing, the veteran provided additional evidence consisting of an August 2007 statement from a co- worker and a September 2007 statement from the veteran's supervisor. This evidence was accompanied by a waiver dated in December 2007. The statements document the veteran's observable symptomatology of neck and back pain as well as demonstrative tremors at work and the supervisor's statement mentioned that the veteran's conditions had required taking leave from work and medication on the job. Legal Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court recently held 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). A. Increased Evaluations - Tremors of the Right and Left Upper Extremities The veteran's benign tremors of the right and left upper extremities have been evaluated as 20 percent disabling for the period before January 22, 2007; and 30 (left ) and 40 (right) percent disabling for the period on and after January 22, 2007, under 38 C.F.R. § 4.124a Diagnostic Code 8512. The veteran is right handed and therefore this is considered to be his major extremity. The pertinent criteria for diseases of the peripheral nerves includes provisions for evaluating several different types of nerve injuries of the upper extremities. In this case, the veteran's bilateral tremors are evaluated as the "lower radicular group" (all intrinsic muscles of hand, and some or all flexors of the wrist and fingers), based upon the veteran's primary complaint of tremors and loss of function involving the hands. See 38 C.F.R. § 4.124a, DC 8512. Although there exist other available diagnostic codes for neurological problems affecting the hands, including those for the musculospiral nerve, and median nerve, confirmation as to whether these other categories apply is not essential since the relevant basis of any general symptoms in the hands is comprised by DC 8512. Under 38 C.F.R. 4.124a, DC 8512, for paralysis of the lower radicular group, a 20 percent rating is assigned when there is mild incomplete paralysis. Moderate incomplete paralysis corresponds to a 30 percent rating for the minor extremity, and 40 percent rating for a major extremity. Severe incomplete paralysis corresponds to a 40 percent rating for the minor extremity, and 50 percent rating for a major extremity. Where there exists complete paralysis, with paralysis of all intrinsic muscles of the hand, and some or all flexors of the wrist or fingers (and substantial loss of use of the hand), a 60 percent rating is warranted for the minor extremity, and 70 percent rating for a major extremity. Also, DCs 8612 and 8712 correspond to neuritis and neuralgia affecting the lower radicular nerve group, respectively. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than that associated with complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.123, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Also, under 38 C.F.R. § 4.124, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Since the veteran filed his original service connection claim for tremors, the evidence of record has indicated that this disorder has affected the hands bilaterally, as manifested by fine to sometimes more severe visible tremors of both hands, both with activity and at rest, and impairment of dexterity and function, particularly affecting the veteran's ability to write. Essentially, these primary symptoms have existed and remained largely unchanged since the veteran was discharged from service in January 2003. In the Board's opinion, the evidence satisfactorily establishes that throughout the initial evaluation period (i.e. prior to January 22, 2007), the veteran's bilateral hand tremors and related symptoms are best evaluated as incomplete moderate paralysis of the lower radicular group warranting the assignment of a 40 percent evaluation (right side) and 30 percent evaluation (left side) throughout the initial evaluation period. The appeal is granted to this extent. However, the Board must now also assess whether an increased evaluation is warranted for the entirety of the appeal period (or any portion thereof) extending from February 1, 2003, forward, based on a finding of severe incomplete paralysis or complete paralysis of the lower radicular group. In this regard, the Board initially notes that there has been no clinical evidence presented establishing or even suggesting that the veteran's neurological conditions of the hands are comparable to complete paralysis of the hands, as manifested by paralysis of all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers (with substantial loss of use of the hand). Moreover, having evaluated the totality of the evidence, the Board cannot conclude that the neurological manifestations, primarily affecting only the hands, are consistent with severe incomplete paralysis. In this regard, while it was recently noted that significant tremors were demonstrated (2007 VA examination), VA clinical findings have consistently revealed that reflexes and strength were normal and that cranial nerves II through XII were intact. The veteran himself testified in 2007 that he experienced no impairment of grip strength. Motor and sensory testing has consistently been intact. There has been no indication that pain, numbness or tingling are primary symptoms or affect the functioning of the hands and similarly there has been no mention of any significant range of motion impairment of the hands, wrists or arms. The veteran clearly has functional impairment as repeatedly described in medical records, particularly impacting the veteran's ability to write and his general dexterity. However, for the most part, the evidence has reflected that the veteran is able to move his hands normally, without weakness, sensory or motor loss, or loss of grip strength. In sum, the Board finds that severe impairment, consistent with incomplete paralysis is not demonstrated in either hand. Accordingly, evaluations in excess of 30 percent (left) and 40 percent (right) for benign tremors of the upper extremities are not warranted for any portion of time since February 1, 2003, the day following the veteran's discharge from service. Accordingly, to this extent, the claim must be denied. B. Increased Evaluation - Cervical Strain The veteran's cervical strain with osteoarthritis was initially evaluated as 10 percent disabling under Diagnostic Code 5290 for limitation of motion of the cervical spine, and was later (November 2004 until currently ) evaluated as 20 percent disabling under the revised rating criteria of Diagnostic Code 5237. During the pendency of this claim, the criteria for rating spine disabilities were revised (effective September 26, 2003). The Board will evaluate the veteran's claim under the criteria in the VA Schedule for Rating Disabilities in effect at the time of his filing and the current regulations in order to ascertain which version would accord him the highest rating. According to VAOPGCPREC 7- 2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, none of the above cases or General Counsel opinions prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that the veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after the effective dates of the new regulations. Disabilities manifested by limitation of motion in the cervical spine were evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Evaluations of 10, 20, and 30 percent were assigned for slight, moderate, and severe limitation of motion of the cervical spine, respectively. Notes appended to the new rating formula for diseases and injuries of the spine found at 38 C.F.R. § 4.71a (2007) specify that, 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. Id. Ranges of motion are to be rounded to the nearest five degrees. Id., Note (4). Separate disability ratings are to be given for the thoracolumbar and cervical spine segments. Id., Note (6). Although the criteria under the prior Diagnostic Code 5290 are less defined and numerical ranges of motion were not provided in the prior rating criteria, guidance can be obtained from the amended regulations. In adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, even though pre-2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984. There is no inconsistency, then, in applying the current ranges of motion to rating spine disabilities under the old criteria. As it stands, the limitation of motion of the veteran's cervical spine has been assessed as moderate from February 1, 2003, forward. When evaluated in 2002 and 2004, the motion in all ranges except for rotation was nearly full and at most, was indicative of moderate in limitation. However, when evaluated on January 22, 2007, range of motion of the cervical spine had dramatically decreased in relation to evaluations performed prior to that time. In fact, at that time, the veteran's cervical spine motion was half or less than half of the normal ranges of motion in flexion, extension, lateral flexion and rotation. Arguably, the 2007 findings revealed severe limitation of motion of the cervical spine. In fact, the examiner commented that flexion was "significantly limited." With application of the benefit of the doubt in favor of the veteran, a 30 percent evaluation for severe limitation of motion of the cervical spine is warranted under DC 5290, effective from January 22, 2007, and the appeal is granted to this extent. Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome. 67 Fed. Reg. 54,345 (Aug. 22, 2002). When VA revised the criteria for evaluating general diseases and injuries of the spine effective September 26, 2003, as discussed above, VA also reiterated the changes to Diagnostic Code 5293 (now reclassified as Diagnostic Code 5243) for intervertebral disc syndrome. However, the provisions effective prior to September 23, 2002, are not applicable in this case inasmuch as the veteran's original service connection claim was filed in October 2002. The applicable revisions to 38 C.F.R. § 4.71a, Diagnostic Code 5293, for rating intervertebral disc syndrome provide that preoperative or postoperative intervertebral disc syndrome is to be 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 results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Effective September 26, 2003, intervertebral disc syndrome was assigned a new diagnostic code number (5243), and the instruction with respect to the separate evaluation of neurologic and orthopedic manifestations was re-worded and moved to Note 1, following the General Rating Formula for Diseases and Injuries of the Spine, and the above-mentioned instruction was re-phrased to state that intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under section 4.25. However, these revisions were intended to be clarifying and non-substantive in nature. See Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509, 56,510 (Sept. 4, 2002) (indicating that the then-proposed amendment "would make editorial changes", but would not "represent any substantive change to the recently adopted evaluation criteria for intervertebral disc syndrome"). (The Board notes that some of the Notes were inadvertently omitted when Diagnostic Code 5293 was re-published as Diagnostic Code 5243 in August 2003; however, this has since been corrected. See Schedule for Rating Disabilities; The Spine; Correction, 69 Fed. Reg. 32,449 (June 10, 2004)). With regard to the first method of evaluation (total duration of incapacitating episodes over the past 12 months), the new criteria provide that a 10 percent evaluation is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The term "chronic orthopedic and neurologic manifestations" were defined as "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 (2003), Note (1). (As noted previously, effective from September 26, 2003, the instruction with respect to the separate evaluation of neurologic and orthopedic manifestations was re-worded and moved to Note 1, following the General Rating Formula for Diseases and Injuries of the Spine; however, the change was intended to be clarifying and non-substantive in nature.) With regard to the second method of evaluation, the General Rating Formula provides a unified schedule for orthopedic symptomatology, including limitation of motion, 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. To receive a rating higher than 20 percent, forward flexion of the cervical spine must be shown as 15 degrees or less; or favorable ankylosis of the entire cervical spine must be shown. Neither criteria has been met at any time in this case. Accordingly, further discussion of the criteria of the General Rating Formula is moot. Note (2) of the General Ratings Formula directs that "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." The Board will address neurologic symptomatology below. Turning to the provisions which could possibly provide higher ratings for the veteran's service-connected cervical strain with osteoarthritis, the Board will discuss the veteran's spinal disability addressing the prior and current Intervertebral Disc Syndrome ratings. See 38 C.F.R. § 4.71a, DC 5293 (2002) and 38 C.F.R. § 4.71a, DC 5243. Higher ratings of 40 and 60 percent are available under each version. The rating criteria that were in effect prior to September 23, 2002, provided that pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief warrants a 60 percent rating. A 40 percent evaluation is to be assigned when the intervertebral disc syndrome is severe, when there are recurring attacks, with only intermittent relief. Diagnostic Code 5293, in effect prior to September 23, 2002. However, this criteria is inapplicable to the veteran's claim, as his original service connection claim for a disability of the cervical spine was filed thereafter in October 2002. In sum, in order to receive a higher rating, the evidence must show neurological impairment, such as can merit an independent rating under the Diagnostic Codes for neurological impairment, or show incapacitating episodes of a total duration of at least four weeks in the previous twelve months under the alternative criteria under DC 5243 for IDS. As for the ratings for intervertebral disc syndrome (preoperatively or postoperatively) effective from September 2002, the evidence does not show incapacitating episodes warranting an increased evaluation. When assessed by VA in January 2007, the report indicated that the veteran had experienced 1 incapacitating episode lasting 2 days, during the past 12 months. In contrast, in hearing testimony presented in July 2007, the veteran estimated that he experienced incapacitating episodes related to the disability of the cervical spine about once a month and lasting a couple of days. As previously indicated, by definition, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In this case, during the past year there has been no indication or documentation of bedrest prescribed by a physician. The treatment that the veteran receives is on an ongoing basis with some flare-ups occurring 2 to 3 times a month, of a moderate to severe nature, without notation in the treatment records documenting this frequency or severity. Accordingly, the Board finds that the preponderance of the evidence does not support the assignment of an increased evaluation based upon consideration of incapacitating episodes under the rating provisions of DC 5243. As for neurological disability, essentially the only neurological symptomatology complained of is right-sided radicular symptoms with flare-ups, not persistent (2007 VA examination). By itself, subjective complaints of radiating pain without objective evidence of neurological abnormality cannot merit an independent rating. As a general matter, in evaluating musculoskeletal disabilities, the VA must determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45 (2007). The Board has considered whether the factors and consideration discussed in the DeLuca case and under 38 C.F.R. §§ 4.40, 4.45 warrant the assignment of an evaluation in excess of 20 percent. However, in 2002, the VA examination showed mild cervical strain without functional impairment. In 2004, the examiner noted that occasional acute spasm and strain could be expected which might limit range of motion of the cervical no more than 10 degrees, and observed that no neurological deficit, gait disturbance, or upper and lower extremity weakness would be expected secondary to the spinal conditions. In 2007, VA examination showed increased pain with repetitive motion, but no further decrease in range of motion. Although the veteran reported flare-ups of neck pain 2-3 times per month, with corresponding decrease in range of motion, it was also noted that his daily activities were not significantly limited due to this. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the aforementioned clinical findings particularly from 2004, formed the basis for the assignment of a 20 percent evaluation, which included considerations of the veteran's complaints of pain, and flare-ups of spasms and strain which might result in minimal and only occasional additional impairment and limited motion. However, these findings, which were essentially limited to August 2004, do not comport with the assignment of a rating in excess of 20 percent for any portion of the appeal period prior to January 22, 2007. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent for cervical strain with osteoarthritis, prior to January 22, 2007. See Gilbert, 1 Vet. App. at 53. C. Increased Evaluation - Lumbar and Thoracic Strain with Osteoarthritis The veteran's lumbar and thoracic strain with osteoarthritis was initially evaluated as 10 percent disabling under Diagnostic Code 5295 for lumbosacral strain, and was later (November 2004 until currently) evaluated as 10 percent disabling under the revised rating criteria of Diagnostic Code 5243. Again, as discussed above, during the pendency of this claim, the criteria for rating spine disabilities were revised effective September 26, 2003. The Board will evaluate the veteran's claim under the criteria in the VA Schedule for Rating Disabilities in effect at the time of his filing and the current regulations in order to ascertain which version would accord him the highest rating. The veteran's lumbosacral strain was evaluated under the prior regulation, 38 C.F.R. § 4.71a, Diagnostic Code 5295, as 10 percent disabling. The 10 percent rating was assigned for characteristic pain on motion. A 20 percent rating is warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Diagnostic Code 5295 provides a maximum disability rating of 40 percent for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The evidence does not support a higher rating under DC 5295. The veteran clearly complains of back pain, including with motion, documented in medical records. However, to warrant a 20 percent rating, the evidence must show muscle spasms and loss of lateral spine motion in the standing position, which is not shown by any medical evidence of record. At least one post-service examination report (2004) documented muscle spasms; however, that one symptom (muscle spasms) is not enough to warrant an increased rating, in the absence of evidence of loss of lateral spine motion. VA examinations dated from 2002 to 2007 have consistently documented full range of lateral motion. A 40 percent rating under DC 5295 is not warranted because the medical evidence does not show listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. X-rays of the lumbar spine reveal scattered minimal DDD (essentially consistent with osteo-arthritic changes, or narrowing or irregularity of joint space); but, again, without loss of lateral motion. Moreover, other enumerated criteria such as listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, or abnormal mobility on forced motion, have never been clinically shown. Under 38 C.F.R. § 4.71a, DC 5292 (as in effect prior to September 26, 2003), a 20 percent rating is warranted where the limitation of motion in the lumbar spine is moderate, and a 40 percent evaluation is assigned for severe limitation of motion. The Board observes that the words "moderate" and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2007). Effective from September 26, 2003, disabilities of the cervical and thoracic spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). The Formula provides the following ratings, in relevant part: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees but no more than sixty degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. ("Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension". See id., Note (5). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or nor it radiates), stiffness, or aching in the affected area of the spine, id., and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine". 68 Fed. Reg. at 51,455 (Supplementary Information). There are higher ratings available under the General Formula; however, they require proof of ankylosis, which is not present here. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). Notes appended to the new rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero 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. Ranges of motion are to be rounded to the nearest five degrees. Id., Note (4). Separate disability ratings are to be given for the thoracolumbar and cervical spine segments. Id., Note (6). As discussed more thoroughly above, although the criteria under the prior Diagnostic Code 5292 were less defined and numerical ranges of motion were not provided in the prior rating criteria, guidance can be obtained from the amended regulations. The veteran underwent range of motion testing during his several VA and private examinations performed in association with this case. The veteran's first VA examination occurred in November 2002. The examiner found that the veteran had ranges of motion of 90 degrees of forward flexion, 30 degrees of extension, lateral flexion of 40 degrees and rotation of 35 degrees. In August 2004, his ranges of motion were 100 degrees of forward flexion, 25 degrees extension, lateral flexion of 30 degrees and rotation of 30 degrees. When evaluated privately by Dr. L. in July 2005, his ranges of motion were 90 degrees of forward flexion, 20 degrees extension, and lateral flexion of 30 degrees (right) and 40 degrees (left) and rotation to 40 degrees. When most recently evaluated by VA in 2007, ranges of motion were 90 degrees of forward flexion, 30 degrees of extension, lateral flexion of 30 degrees and rotation of 30 degrees. The Board finds that the preponderance of the evidence shows that the veteran has forward flexion of, at worst, 90 degrees, and a combined range of motion of consistently greater than 200 degrees. Applying the range of motion measurements to the general ratings formula, a higher rating is not warranted. The veteran's forward flexion has always exceeded 60 degrees and his combined range of motion has never been worse than 200 degrees total. His range of motion exceeds the limits for a 20 percent rating. Using the current ratings formula for guidance, the criteria for a higher rating based on limitation of lumbar motion under the prior Diagnostic Code 5292 are also not met. He has never demonstrated any deficit in flexion, and only slight limitation of extension in 2005, with all other reported ranges of motion being normal. This amounts to no more than slight limitation of motion overall. The veteran has not been shown to have abnormal gait or contour of the lumbar spine, the alternative criteria for a 20 percent rating. There is a single reference to increased lordosis with no kyphosis in 2004 with no further mention of the disorder, so this appears to have been a transient condition only. In short, a higher rating under the general ratings formula is not warranted. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007), at Note (1). The veteran has also complained of radiating pain at times. At his 2007 VA examination, the veteran complained of daily back pain with no radiation. Back strain without radicular component was diagnosed in 2005. He did not report using assistive devices for his back. The veteran denied having any radiculopathy or bowel/bladder incontinence when examined in 2004. Overall, there is no showing that the veteran now objectively manifests neurologic symptoms as a consequence of the service-connected lumbar spine disorder. Accordingly, the Board finds that a separate rating for neurological disorders is not in order. The Board has considered other possible Diagnostic Codes relating to spinal disabilities, particularly vertebral fracture and ankylosis. These disorders are not present and ratings are not warranted for them. The Board has also considered evaluating the lumbar/thoracic spine disability under the criteria for intervertebral disc syndrome. These criteria are described in detail above. The veteran's complaints of back pain do not precisely meet the level of "incapacitating episode" as defined by the revised criteria, which describes an incapacitating episode as being a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. When evaluated by VA in 2007, the veteran mentioned that he experienced flare-ups occurring about once a week, but the examiner indicated that he had not experienced any incapacitating episodes. In contrast, during the veteran's 2007 hearing testimony, he indicated that he experienced 6 to 8 incapacitating episodes a year. However, the medical evidence does not document incapacitating episodes with this frequency or show that the veteran has ever been prescribed bed rest for his back pain. Accordingly, the evidence of record does not indicate that he has experienced incapacitating attacks of intervertebral disc syndrome having a total duration of at least two weeks but less than four weeks. As for consideration of a separate evaluation for chronic neurologic manifestations, there is no objective evidence of neurological abnormalities that would warrant a separate rating in this case. The Board has considered whether the factors and consideration discussed in the DeLuca case and under 38 C.F.R. §§ 4.40, 4.45 warrant the assignment of an evaluation in excess of 10 percent. The veteran's lumbar spine has consistently, from 2002 forward, been productive of full or nearly full range of motion with occasional documentation of pain on motion. When assessed in 2002, the examiner indicated that the veteran had lumbosacral strain without functional impairment. When examined by VA in 2004, the examiner expressed that occasional acute spasm and strain could be expected which might limit range of motion of the lumbar spine no more than 10 degrees. The examiner also observed that no neurological deficit, gait disturbance, or upper and lower extremity weakness would be expected secondary to the spinal conditions. When examined by VA in 2007, the examiner noted that repetitive range of motion testing did not cause pain or decrease the range of motion. It was further noted that range of motion was not limited by pain, fatigue, weakness, or lack of endurance on repetitive use. Although the veteran complained of flare-ups, the only resulting limitation of daily activities was on heavy lifting. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, clinical findings including pain and strain with almost no indication of limited motion of the lumbar spine formed the basis for the initial assignment and for the continuation of a 10 percent evaluation. In light of the evidence summarized above, the Board finds that the clinical evidence does not establish that a rating in excess of 10 percent is warranted for factors such as pain and functional impairment. In sum, the veteran's lumbar and thoracic strain is manifested by muscle spasm, pain, forward flexion always greater than 60 degrees and combined range of motion of, at worst, more than 200 degrees. There is no evidence of loss of lateral spine motion, positive Goldthwaite's sign, listing to one side, marked limitation of forward bending in standing position, or loss of lateral motion with osteo-arthritic changes or narrowing or irregularity of joint space. There are no identified neurological disorders associated with his lumbar spine. The Board concludes that a higher rating is not warranted under the old or new diagnostic criteria for any portion of the appeal period. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased rating. See Gilbert, 1 Vet. App. at 53. (CONTINUED ON NEXT PAGE) ORDER For the portion of the appeal period prior to January 22, 2007, the criteria for a rating of 40 percent for benign tremor of the right upper extremity have been met, subject to the criteria applicable to the payment of monetary benefits. For the portion of the appeal period prior to January 22, 2007, the criteria for a rating of 30 percent for benign tremor of the left upper extremity have been met, subject to the criteria applicable to the payment of monetary benefits. An evaluation in excess of 40 percent for benign tremor of the right upper extremity is denied for the entirety of the appeal period. An evaluation in excess of 30 percent for benign tremor of the left upper extremity is denied for the entirety of the appeal period. An evaluation in excess of 20 percent for cervical strain with osteoarthritis is denied for the portion of the appeal period prior to January 22, 2007. A 30 percent evaluation is warranted for cervical strain with osteoarthritis, effective from January 22, 2007, subject to the criteria applicable to the payment of monetary benefits. An evaluation in excess of 10 percent for lumbar and thoracic strain with osteoarthritis is denied for the entirety of the appeal period. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs