Citation Nr: 0837896 Decision Date: 11/03/08 Archive Date: 11/10/08 DOCKET NO. 94-08 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals of a compression fracture of the cervical and dorsal spine with degenerative changes prior to September 26, 1994. 2. Entitlement to an initial evaluation in excess of 30 percent from September 26, 1994, for residuals of a compression fracture of the cervical and dorsal spine with degenerative changes. 3. Entitlement to an effective date prior to September 26, 1994, for a grant of service connection for radiculopathy of the right upper extremity. 4. Entitlement to an initial evaluation in excess of 20 percent disabling for radiculopathy of the right upper extremity. 5. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine from April 22, 1992 through January 31, 2004. 6. Entitlement to an initial evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine from January 31, 2004. 7. Entitlement to an effective date prior to January 31, 2004, for an award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from November 1965 to April 1968. On April 22, 1992, the RO received a claim from the veteran in which the veteran sought service connection for a "neck fracture." One of the claims on appeal initially came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) in Nashville, Tennessee beginning in September 1992. The Board Remanded the claim in 1995. By a decision issued in November 1997, the Board confirmed an initial noncompensable evaluation for compression fracture, cervical and dorsal spine. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Following a Joint Motion by the parties, in August 1999, the Court vacated the Board's 1997 decision. The Board Remanded the appeal in July 2003. During the pendency of the appeal, after the July 2003 Remand, the RO granted service connection for degenerative arthritis of the lumbar spine, effective from April 22, 1994, and for radiculopathy of the right upper extremity, effective September 26, 1994. The veteran disagreed with the initial evaluations assigned for those disabilities, as well as continuing his disagreement with the initial evaluation assigned for residuals of compression fracture, cervical and dorsal spines. The veteran also disagreed with the effective date assigned for the grant of service connection for radiculopathy. The veteran timely perfected appeals as to the additional issues, and those claims are before the Board for appellate review. The issues are renumbered on the title page of this decision for clarity, but are unchanged from the issues as stated by the RO except as to numbering. In April 2008, the veteran submitted a timely substantive appeal as to the effective date assigned for an award of a total (100 percent) disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). That issue has also been certified to the Board. The Board notes the October 2008 statement of the veteran's attorney that retrospective medical opinion is required where there is a lack of medical evidence for the time period being rated. Hines v. Principi, 18 Vet. App. 227 (2004). The Board agrees with the attorney's contention that additional development and medical opinion is required as to the claim for an earlier effective date for TDIU, on an extraschedular basis. That claim is Remanded in this decision. However, the clinical evidence of record provides a contemporaneous picture of the severity of each of the veteran's service- connected disabilities addressed in this decision throughout the pendency of the issues on appeal. Contemporaneous medical evidence which reflects the severity of each service- connected disability continuously through the appeal period is associated with the claims file, and development of retrospective medical opinion as to the severity of the disabilities during a period for which records are missing is not required. The veteran requested a Travel Board hearing. The requested hearing was conducted in April 1994 by a Veterans Law Judge who is no longer employed by the Board. The veteran was notified in April 1997 that he had the right to request another Travel Board hearing. The veteran did not request another Travel Board hearing. In a statement received in March 2008, the veteran withdrew his request for a local (personal) hearing before the RO. Appellate review may proceed. The claims for an initial evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine from April 22, 1992 through January 31, 2004, and for an initial evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine from January 31, 2004, and the claim for TDIU are addressed in the REMAND portion of the decision below. The claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The credible evidence establishes that the veteran had no more than mild limitation of motion of the cervical spine prior to September 26, 1994, without abnormal mobility of the cervical or thoracic spine, but deformity of a vertebral body is present, warranting a separate, compensable evaluation. 2. From September 26, 1994, the veteran's cervical spine disability has not resulted in ankylosis or abnormal mobility, has not required bedrest prescribed by a physician, and there is no diagnosis of intervertebral disc disease of the cervical spine, other than the vertebral body deformity for which a separate evaluation has been granted, or of a neurologic disorder due to cervical spine disability, other than radiculopathy of the right upper extremity for which a separate evaluation has been assigned. 3. Clinical evaluations prior to September 26, 1994, ruled out radiculopathy, so there is no authority to award service connection for that disorder prior to assignment of the medical diagnosis of the disorder. 4. The veteran's disability due to radiculopathy of the right upper extremity is manifested by pain, numbness, tingling, and non-dermatomal decreased sensation in the right hand, with retained grip strength of 4+/5. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for residuals of a compression fracture of the cervical and dorsal spine with degenerative changes prior to September 26, 1994, are not met, but the criteria for a separate, compensable, 10 percent evaluation for deformity of a vertebral body are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5285, 5290 (1994, 1993, 1992). 2. The criteria for an initial evaluation in excess of 30 percent from September 26, 1994, for residuals of a compression fracture of the cervical and dorsal spine with degenerative changes, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, § 4.71a, Diagnostic Codes 5235, 5241, 5243 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as effective September 23, 2002 to September 25, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5290, 5293 (1995). 3. The criteria for an award of service connection for radiculopathy are not met prior to September 26, 1994. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). 4. The criteria for an initial evaluation in excess of 20 percent for radiculopathy of the right upper extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.115b, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before the Board assesses the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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). Duty to notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of this claim, service connection was granted for residuals of a compression fracture of the cervical and dorsal spine, right upper extremity radiculopathy, and for degenerative arthritis of the lumbar spine. Courts have held that once service connection is granted, the claim is substantiated, and additional notice is not required as to such claim, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, since each of the claims included in this appeal arise from the veteran's disagreement with initial evaluations or effective dates following grants of service connection, discussion of VA's duty to notify the claimant is not required. Moreover, beginning with his appeal to the Court from the Board's 1997 decision, the veteran has been represented by counsel. Argument submitted by counsel on the veteran's behalf has demonstrated that he is well aware of the requirements of the VCAA and the elements needed to substantiate the claims arising from the initial grants of service connection and the award of TDIU. The veteran's attorney has made numerous submissions on behalf of the veteran during the course of this appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that VCAA notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO); see also Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a VCAA notice error); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to sympathetic reading below). The Board notes that some regulations applicable to evaluation of the service-connected disabilities at issue have changed during the pendency of the veteran's appeal, and the veteran has been notified of these changes, and the claims readjudicated following such notice. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA notification duties to the veteran to the extent necessary. Duty to assist During this period, the veteran has submitted and identified private clinical records and opinions, and all identified evidence has been obtained. VA clinical records have been obtained and associated with the claims files. Records were obtained from the Social Security Administration (SSA). The veteran was afforded more than 10 VA examinations. The parties have entered into one Joint Motion regarding the duty to assist the veteran, and issue then on appeal has been Remanded by the Board. Neither the veteran nor his counsel has identified any additional evidence which might be relevant to the claims on appeal. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). No further notice or assistance to the veteran is required to fulfill VA's duties to the veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed. Law and regulations applicable to claims for increased initial evaluations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes (DCs) identify each disability. A rating that is assigned with a grant of service connection, such as the case in this appeal, must take into account all evidence of the nature and severity of the disability from the effective date of service connection. Thus, the rating might be a "staged" rating, that is, one comprised of successive ratings reflecting variations in the disability's severity since the date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The veteran's appeal for higher initial evaluations requires consideration of staged ratings. The provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, the criteria for evaluating degenerative arthritis, state that degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5003 further states that, where limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under DC 5003. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board notes, however, that the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When the veteran submitted his claims in 1992, the regulations governing evaluation of disorders of the spine were codified at 38 C.F.R. § 4.71a, DCs 5285 to 5295. These regulations were amended during the pendency of this appeal. In 2002, DC 5293, for intervertebral disc syndrome, was amended, effective on September 23, 2002. See 67 Fed. Reg. 54,345-349 (Aug. 22, 2002). In 2003, further amendments were made for evaluating disabilities of the spine, including under DC 5285. See 68 Fed. Reg. 51,454-458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243). An omission was then corrected by reinserting two missing notes. See 69 Fed. Reg. 32,449 (June 10, 2004). The amendment and correction were effective from September 26, 2003. The notes to the General Rating Formula for Disease and Injuries of the Spine, as in effect from September 26, 2003, provide that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Where a law or regulation changes after a claim has been filed, but before the administrative appeal process has been concluded, the Board considers both the former and the current schedular criteria. See, e.g., VAOPGCPREC 7-2003. The effective-date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made, but only the criteria in effect prior to the amendments may be considered prior to the effective date of the amendments, if the new version of the law or regulation is more favorable to the veteran than the prior version. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Where evaluation is based upon limitation of motion, and functional loss is alleged due to pain on motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 1. Claim for evaluation in excess of 10 percent for residuals, compression fracture, cervical and dorsal spine, prior to September 26, 1994 Following the veteran's April 1992 claim for service connection for a neck fracture, the veteran was awarded service connection for a fracture of the cervical and dorsal spine, and the service-connected disability was initially evaluated as noncompensable under 38 C.F.R. § 4.71a, DC 5285; during the pendency of this appeal the initial evaluation has been increased to 10 percent prior to September 26, 1994, under DCs 5285 and 5290. DC 5285, as in effect prior to September 26, 2003, rated residuals of a fracture of the vertebra, without cord involvement, as 60 percent disabling where there was abnormal mobility requiring a neck brace (jury mast). In other cases, a disability due to residuals of a vertebral fracture was rated in accordance with limited motion or muscle spasm, adding 10 percent for demonstrable vertebral body deformity. Prior to September 2003, DC 5290 provided the criteria for evaluation for limitation of motion of the cervical spine. Slight limitation of motion of the cervical spine was 10 percent disabling. Moderate or severe limitation of motion of the cervical spine was 20 percent disabling or 30 percent disabling. A 30 percent evaluation was the maximum evaluation for limitation of motion of the cervical spine. Facts and analysis May 1992 VA outpatient treatment records reflect that the veteran complained of pain in the cervical area. He requested a refill of pain medication. Examination revealed tenderness at C7 and a "fair" range of motion. A diagnosis of status post fracture and probable degenerative joint disease was rendered. On VA examination conducted in December 1992, the veteran complained of pain with any neck motion, and the examiner was unable to elicit active or passive range of motion of the neck. However, no gross motor or sensory deficits were detected. Significantly, the examiner stated that the veteran was able to turn his head "almost normally" in the waiting room when he was unaware he was being observed. December 1992 radiologic examination of the cervical spine confirmed minimal degenerative changes and some anterior spurring; there was no definite fracture. The veteran's subjective reports that his cervical spine motion was severely limited are contradicted by the objective evidence of record. The Board finds that the credible evidence shows that the veteran did not manifest more than mild limitation of motion of the cervical spine. During the period reflected in these records, no criterion for an evaluation in excess of 10 percent under DC 5290 was met. In February 1993, the veteran requested a soft cervical collar. A February 1993 treatment record reflects that there were "a number of inconsistencies" on examination, but the soft collar was ordered. At his 1994 hearing before the Board, the veteran testified that the cervical collar was required to help him avoid turning his head in bed at night. The veteran testified that turning his head caused so much pain it would wake him up. There was no finding of abnormal, that is, greater than normal, mobility. Rather, the veteran reported that his neck mobility was decreased due to pain, but he requested the cervical collar to prevent him from moving his head while sleeping. The use of the cervical collar does not establish that the veteran had abnormal mobility of the spine so as to meet a criterion for an evaluation in excess of 10 percent under DC 5285. March 1993 VA outpatient treatment evaluation again revealed inconsistencies in the physical examination. The veteran was advised to use the soft cervical collar intermittently. SSA examination in July 1993 disclosed that, although the veteran reported inability to voluntarily move his neck, he was able to look to the right and to the left to follow the examiner as he moved about the room, and was able to move his neck when distracted from his pain. The objective evidence that the veteran had full range of thoracic motion is also inconsistent with his subjective complaints of severe limitation of motion of the neck. Where evaluation is based upon limitation of motion, and functional loss is alleged due to pain on motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Therefore, although the veteran alleged that he had pain on motion, and reported that he was unable to turn his head, the Board finds that the veteran's subjective complaints are not credible. The persuasive evidence establishes that the veteran's cervical spine disability was mild, including with consideration of pain and functional loss. Because the examiner who interpreted the radiologic examination did not assign a diagnosis other than degenerative disease, and did not indicate that there was deformity of any vertebral body, other than flattening associated with arthritis, no separate, additional, compensable evaluation is warranted under DC 5285. Since degenerative joint disease (arthritis) of the cervical spine is evaluated under DC 5003 if limitation of range of motion is noncompensable, or under DC 5290 (prior to September 2002), this evidence is consistent with the 10 percent evaluation assigned. The regulations in effect prior to September 26, 1994, preclude a separate compensable evaluation under each diagnostic code. The 10 percent evaluation assigned for limitation of the veteran's range of motion of the neck encompasses mild limitation. The next higher evaluation, a 20 percent evaluation, requires that the veteran establish that his limitation of cervical motion was moderate rather than mild. The veteran's subjective reports of limitation of motion indicate that his limitation of cervical motion was moderate or severe. However, clinical records demonstrate that objective findings contradict the veteran's subjective complaints of the severity of limitation of motion of the neck during the period prior to September 1994. In particular, objective evaluation of the veteran's ability to move his neck revealed far less limitation than the veteran claimed during formal examinations. A July 1995 VA radiologic examination of the thoracic spine discloses mild anterior compression of the T8 and T9 vertebral bodies. Since the service-connected cervical disability is characterized as including the dorsal (thoracic) spine, this clinical evidence is favorable to a separate, compensable evaluation in excess of 10 percent, as it establishes that the veteran manifested deformity of a vertebral body, as required for a 10 percent evaluation under DC 5285. The July 1995 radiologic examination interpreted this deformity as "chronic." As this July 1995 radiologic examination of the thoracic spine was the first radiologic examination specific to that area of the spine, the Board assumes that the deformity was present when the veteran submitted his claim in 1992, thus warranting the 10 percent evaluation for deformity of a vertebral body both prior to and from September 26, 1994. However, DC 5285 authorizes no more than one 10-percent increase for deformity of a vertebral body or bodies in a spinal segment, so one additional, compensable 10 percent evaluation in the maximum evaluation authorized on the evidence of record. VAOPGCPREC 3-2006. In particular, the Board notes that, although radiologic examination of the veteran's thoracic spine conducted in September 2000 disclosed only mid-thoracic spurring. Radiologic examination was conducted prior to the March 2004 VA examination, as discussed in the report of the examiner who conducted that examination, but those radiologic examination reports are not associated with the record before the Board. The Board assumes, therefore, that the examination reports continued to disclose compression of a thoracic vertebral body. After consideration of the credibility, weight, and persuasive value of the evidence, the preponderance of the evidence is against an evaluation in excess of 10 percent during this period for cervical spine disability, with the additional of a separate, compensable, 10 percent evaluation for deformity of a vertebral body. The evidence is not in equipoise, so the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). 2. Claim for initial evaluation in excess of 30 percent from September 26, 1994, for residuals of a compression fracture, cervical and dorsal spine Effective September 26, 1994, a 30 percent evaluation is assigned for the veteran's cervical spine disability. A 30 percent evaluation for limitation of range of motion is the maximum evaluation which may assigned under DC 5290, the governing regulation when the veteran submitted his claim. As noted above, the regulations governing evaluation of disabilities of the spine were amended during the pendency of this appeal. Prior to changes in the criteria for evaluating intervertebral disc disease, a veteran is entitled to an evaluation in excess of 30 percent with severe intervertebral disc disease and neurologic symptoms; after the changes, a veteran is entitled to an evaluation in excess of 30 percent if he has frequent incapacitating episodes of bed rest prescribed by a physician. However, no provider has assigned a diagnosis of intervertebral disc disease of the cervical spine. The examiner who conducted a September 2000 VA examination stated that there was loss of the C5-C6 disk space. However, that finding was not confirmed on later examinations. Most recently, the examiner who conducted January 2005 VA examination assigned a diagnosis of intervertebral disc disease of the lumbar spine, but assigned a diagnosis of degenerative joint disease for the cervical spine and thoracic (dorsal) spine. The medical evidence establishes that DC 5293 (as in effect prior to September 2002 or September 2003) and DC 5243 (as in effect from September 2003) are not applicable to warrant an evaluation in excess of 30 percent for cervical and dorsal spine disability from September 1994. Under the old Diagnostic Code 5287, a 40 percent rating could be assigned for unfavorable ankylosis of the cervical spine. From September 26, 2003, the General Rating Formula provides a 40 percent evaluation for unfavorable ankylosis of the entire cervical spine, among other alternative criteria. In December 1994, the veteran complained of a stiff neck. His range of motion was limited to 15 degrees of rotation, 0 degrees of flexion, and 15 degrees of extension. In January 1995, the veteran had flexion to 40 degrees, extension to 30 degrees, and had 60 degrees of left rotation. At the time of VA examination conducted in March 2004, the examiner noted that the veteran's degenerative joint disease at C6-C7 and C7-T1, with "almost ankylosis" at these two vertebrae. Nevertheless, the veteran retained 30 degrees of forward flexion, 10 degrees of extension, and 40 degrees of right and left lateral flexion and right and left rotation, of the cervical spine. Thus, ankylosis has not been shown. The evidence does, in fact, tend to establish that the veteran does not meet any criterion for an evaluation in excess of 20 percent under DC 5242 during the period from September 2003, when revision of the regulation governing evaluation of spinal disability became effective. However, the Board will assume that the prior version of the regulation was more favorable to the claim than the new versions of the regulations, and the Board will not disturb the RO's assignment of a 30 percent evaluation from September 26, 1994. The evidence throughout the pendency of the appeal establishes that the veteran retained significant range of cervical motion, with combined motion of the cervical spine, when considered in all planes, approaching 200 degrees on examination in 2005. The evidence is against a finding that a 40 percent evaluation may be assigned on the basis of ankylosis. In this case, the veteran has been granted a separate evaluation of neurologic residuals, with a grant of service connection for radiculopathy, right upper extremity, as of September 1994. The veteran is not entitled to an evaluation in excess of 30 percent for cervical spine disability under DC 5290 (prior to September 2003), or under DC 5237 (from September 2003) based on neurologic residuals, because those symptoms have already been considered in the assignment of a separate, compensable, 20 percent evaluation for radiculopathy of the right upper extremity. 38 C.F.R. § 4.14 (evaluation of the same disability under various diagnoses is to be avoided). No other neurologic effects or symptoms of cervical and dorsal spine disability have been confirmed. There is no basis for an evaluation in excess of 30 percent for a cervical spine disorder, under any version of the criteria for evaluating spinal disorder, from September 1994, based on neurologic findings. The preponderance of the evidence is against an evaluation in excess of 30 percent for cervical spine disability during this period of the appeal. The Board finds that the veteran's symptoms did not exceed the 30 percent evaluation during any portion of the period of appeal under review in this issue, and finds that a staged rating from September 26, 2004, is not appropriate. As the evidence is not in equipoise to warrant an evaluation in excess of 30 percent for cervical spine disability during the relevant period, with the additional of a separate, compensable, 10 percent evaluation for deformity of a vertebral body, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). The claim for an initial evaluation in excess of 30 percent for residuals of a fracture of the cervical spine from September 26, 1994, must be denied. 3. Claim for effective date prior to September 26, 1994, for award of service connection, radiculopathy, right upper extremity The effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date of an award is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). In this case, a diagnosis of radiculopathy was considered in March 1993, when the veteran reported chronic neck and shoulder pain and some subjective decrease in strength in the forearms bilaterally. Electromyography(EMG) and nerve conduction velocity (NCV) examinations conducted in April 1993 were essentially normal. The medical providers determined that a diagnosis of radiculopathy, upper extremities, had been ruled out. The veteran submitted a claim for SSA disability benefits in May 1993. A July 1993 examination for SSA purposes disclosed normal findings on sensory, motor, and reflex evaluation. This evidence is unfavorable to an earlier date for a grant of service connection for radiculopathy, since no radiculopathy was found, and an EMG disclosed no abnormality. Private records from the Memphis Health Center also disclosed complaints of neck and back pain and a diagnosis of degenerative joint disease, but no diagnosis of radiculopathy, during the period from November 1993 to July 1994. September 1994 private outpatient treatment disclosed abnormal findings on pinprick in the right upper extremity. A private nerve conduction test conducted in November 1994 assigned a diagnosis of probably right cervical radiculopathy. Based on this evidence, the RO assigned an effective date of September 26, 1994, for the grant of service connection for right upper extremity radiculopathy. Since the November 1994 nerve conduction study did not rule out radiculopathy, as previous objective examinations had, and since that diagnostic examination was conducted to follow up on abnormal findings in the September 26, 1994 examination, the Board does not disagree with the assignment of September 26, 1994 as the effective date for the grant of service connection for radiculopathy. The Board notes that a July 2002 private medical opinion provided by Craig N. Bash, MD, states that the veteran had positive EMG findings in 1994 and 1995. Dr. Bash did not, however, provide an opinion that right upper extremity radiculopathy was medically presented prior to September 26, 1994. Thus, there is no evidence or opinion which supports an effective date earlier than the date assigned by the RO. A diagnosis of suspected radiculopathy was ruled out on objective diagnostic examinations conducted prior to September 26, 1994. The statute and regulations governing effective dates require that, if service connection for a disorder is claimed before the disorder is present, the effective date for service connection for that disability is the date entitlement arose, that is, when the disability was first medically diagnosed. In this case, where the diagnosis at issue was medically ruled out in July 1993, and no tentative diagnosis of the disorder was again rendered until September 26, 1994, the date of the September 1994 examination is the earliest date entitlement to service connection for radiculopathy arose. The Board is not authorized to grant an effective date prior to September 26, 1994, for service connection for radiculopathy. The preponderance of the evidence is against an effective date earlier than September 26, 1994, for the grant of service connection at issue. As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). The claim must be denied. 4. Claim for initial evaluation in excess of 20 percent, radiculopathy, right arm The veteran's radiculopathy, right arm is evaluated as paralysis of the upper radicular group (5th and 6th cervicals) under DC 8710. The upper radicular group is evaluated under DC 8510, for paralysis of the upper radicular group, or DC 8610, for neuritis of the upper radicular group, or DC 8710, where there is neuritis of the upper radicular group. A minimum rating of 20 percent for the upper extremity, irrespective of whether it is the major (dominant) or minor upper extremity, when the paralysis is incomplete and mild is warranted. Ratings of 40 and 30 percent for the major and minor extremities, respectively, are assigned when the paralysis is incomplete and moderate. Ratings of 50 and 40 percent for the major and minor extremities, respectively, are assigned when the paralysis is incomplete and severe. Maximum ratings of 70 and 60 percent, respectively, may be assigned when the paralysis is complete and all shoulder and elbow movement has been lost, or is severely affected. 38 C.F.R. § 4.124a, DCs 8510, 8610, 8710. December 1994 private treatment notes reflect that the veteran complained of pain and numbness in the right hand. The symptoms were nondermatomal. In January 1995, the veteran complained of numbness in the right hand, right index finger, thumb, and some difficulty holding objects. VA examination conducted in July 1995 disclosed slightly decreased grip strength in the right upper extremity and decreased sensation to pinprick in the C7 dermatome. On VA examination conducted in March 1996, the veteran reported numbness of the thumb and index finger, right hand. However, no specific neurologic deficit was found. The examiner who conducted September 2000 VA examination concluded that he was unable to determine whether the veteran actually had radicular symptoms. In March 1996, neurological, motor, grip, and cerebral examinations were normal. Examination conducted in September 2000 disclosed full range of motion of both shoulders, but with pain, and the veteran was "somewhat resistant" to range of motion of the shoulders. There was "breakaway" muscle weakness. There is no report of objective examination or subjective statement or report thereafter which reflects additional impairment of shoulder or elbow movement. The report of January 2005 VA examination discloses that the veteran had 4+/5 muscle strength in the right upper extremity, non-dermatomal sensory loss in the right upper extremity, with motion limited due to neck pain. The veteran reported significant functional loss. Deep tendon reflexes were 1+. He complained of difficulty with repetitive movements and fatigability. Hoffman's sign (also called the finger flexor reflex) was negative. See Stedman's Medical Dictionary 1638 (27th ed. 2000). The evidence during the entire appeal period is unfavorable to an evaluation in excess of 20 percent for right upper extremity radiculopathy. In particular, the veteran retained 4+/5 grip strength, without any objective or subjective findings or complaint of paralysis, muscle atrophy, or other finding consistent with moderate incomplete paralysis. The veteran's primary complaints and findings are numbness, tingling, and loss of sensation, consistent with neuritis, but there is no evidence of paralysis. Although the veteran reported difficulty with repetitive movement and fatigability, those symptoms, when considered with the veteran's 4+/5 muscle strength and the absence of other innervation abnormality, do not warrant a finding that there is moderate incomplete paralysis. The preponderance of the evidence is against an evaluation in excess of 20 percent for radiculopathy. As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). The claim must be denied. ORDER A separate, compensable 10 percent evaluation for deformity of vertebral body is granted under DC 5285, subject to law and regulations governing the effective date of an award of monetary compensation, but the claim for an initial evaluation in excess of 10 percent for residuals of a compression fracture of the cervical and dorsal spine with degenerative changes prior to September 26, 1994, evaluated under DC 5290, is denied; the appeal is granted to this extent only. The appeal for an initial evaluation in excess of 30 percent from September 26, 1994, for residuals of a compression fracture of the cervical and dorsal spine with degenerative changes, evaluated under DC 5242 (excluding a separate, compensable 10 percent evaluation for deformity of vertebral body granted under DC 5285) is denied. The appeal for an effective date prior to September 26, 1994, for a grant of service connection for radiculopathy of the right upper extremity, is denied. The appeal for an initial evaluation in excess of 20 percent disabling for radiculopathy of the right upper extremity is denied. REMAND The veteran was provided VA examination of the cervical spine in March 1996 and March 2000 and VA examination of the cervical spine and lumbar spine in January 2004. Unfortunately, the clinical evidence does not include VA or private treatment records pertinent to the severity of lumbar spine disability during the periods between March 1996 and March 2000 or between March 2000 and January 2004. The veteran has indicated that he had physical therapy following the March 2000 VA examination. Additional VA clinical records, and private clinical records, if available, and any other pertinent records identified by the veteran, should be obtained. If there are no pertinent records, that fact should be documented. Currently, the veteran has been granted service connection for three disabilities, degenerative arthritis of the lumbar spine, evaluated as 10 percent disabling from 1992 and as 40 percent disabling from January 31, 2004, residuals, compression fracture of the cervical and dorsal spine, evaluated as 10 percent disabling from April 1992 and as 30 percent disabling from September 1994, and radiculopathy, right upper extremity, evaluated as 20 percent disabling. His combined disability evaluation is 20 percent, from April 1992, 50 percent from September 1994, and 70 percent from January 2004. Thus, he met the criteria for a schedular evaluation from January 2004, and TDIU was awarded as of that date. The veteran's counsel has, however, specifically argued that veteran is entitled to an award of TDIU on an extraschedular basis prior to that date. The veteran has not worked since either 1986, according to his SSA application, or 1991, according to his 2003 formal application for TDIU. The veteran should be asked to clarify his work history, and to provide information about "work- like" tasks he may have performed since 1991, such as running a household or providing care or supervision of others. More specific evidence about the veteran's industrial capabilities, capability for sedentary work, and the effect on service-connected disabilities on industrial capability is required, given that the most recent VA opinions have addressed work capability in general terms but have not assessed the effect of service-connected disabilities on specific tasks required for employment. Because the authority to assign extra-schedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service, and not the Board, in the first instance, the correct course of action for the Board where it finds that entitlement to an extra-schedular evaluation may be present is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 3.321(b)(1). Floyd v. Brown, 9 Vet. App. 88 (1996). In light of this, the prudent and thorough course of action is to afford the veteran a social and industrial survey, to ascertain the impact of his service-connected disabilities on his unemployability, both under 38 C.F.R. § 4.14 and 38 C.F.R. § 3.321(b). Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA inpatient and outpatient treatment records from March 1996 to January 2005, and records subsequent to January 2005, the date of the most recent VA examination. 2. The veteran should also be offered an opportunity to identify or submit any private clinical records not yet associated with the claims files, especially any clinical records which might demonstrate the severity of lumbar disability or demonstrate that the veteran's unemployability is due to a service-connected disability. All attempts to procure records should be documented in the file. 3. The veteran should clarify his employment history, including when he last worked, through written evidence if possible, such as tax returns, Social Security Administration employment income history, or the like. 4. A Social and Industrial Survey should be conducted to evaluate the veteran's employability, including the veteran's complete employment history, complete educational background, and day-to-day functioning, including history of work- like tasks and activities of daily living performed during the period on appeal, from April 22, 1992, prior to January 2004. The report should include a full account of the veteran's occupational and educational history since service. The person conducting the survey should make appropriate inquiries to persons or establishments, including neighbors, individuals who shared housing with the veteran, places where the veteran received rehabilitation or treatment, including physical therapy, and should account for the veteran's sources of recreation, with an emphasis on seeking unbiased observers of the veteran's abilities to sit, stand, walk, concentrate, talk, use a keyboard and computer, or perform other work-like activities. A written copy of the report should be associated with the veteran's claims file. 5. The veteran should be afforded VA orthopedic and neurologic examinations of the lumbar spine, to describe the current severity of the lumbar spine disability. The claims folder and a copy of this Remand should be made available to the examiner for review in connection with the examination. The examiner must indicate that pertinent documents in the claims folders were reviewed. Following examination of the veteran, the examiner should describe the current severity of the veteran's lumbar strain disability, including description of range of motion, functional impairment including impairment from painful motion, weakness, fatigability, and incoordination, including on flare-ups. When addressing functional loss, provide a description of any observed pathology or visible behavior of the claimant when undertaking the motion. If the examiner is unable to describe any functional impairment without resort to speculation, the examiner should so state. 6. Each examiner who conducts examination related to the veteran's lumbar spine disability should also be asked to describe each impairment of employment or work-like activities and functions due to the veteran's cervical and lumbar spine disabilities (service-connected residuals of a compression fracture of the cervical and dorsal spine, radiculopathy of the right upper extremity, and degenerative arthritis of the lumbar spine). Each examiner should provide an opinion as to what employment activities the service- connected disabilities interfered with, and should describe the severity of interference over the period from April 1992 to January 2004. The supplied opinion must contemplate the veteran's education and occupational history. In forming the opinion, the examiner should disregard both the age and the nonservice- connected disabilities of the veteran. In arriving at the requested opinion concerning the veteran's unemployability, the examining physician should also specifically consider and expressly comment on the findings/opinions expressed by the Social Security Administration in 1993 through 1995 and the 2002 and 2005 opinions of Dr. Craig Bash. 7. After assuring that development is complete and that each aspect of the veteran's employment history and VA examination report required is complete, the Remanded claims should be readjudicated. If any benefit sought is not granted, the veteran and his representative should be issued a supplemental statement of the case (SSOC) which addresses actions taken since the issuance of the last SSOC. The veteran should be given the opportunity to respond, and the claim should thereafter be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs