Citation Nr: 1003191 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 06-39 521 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an increased evaluation in excess of 20 percent for the service-connected neck disability prior to September 9, 2009, and an evaluation in excess of 30 percent beginning September 9, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from August 1974 to August 1976 and from November 1990 to June 1991. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 RO rating decision. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2008, and a copy of the transcript is of record. In February 2008, the Board remanded the issue currently on appeal to the RO for additional evidentiary development. In its February 2008 decision, the Board also denied the Veteran's separate claims of service connection for numbness of the fingers and loss of strength of the left and right upper extremity, to include as secondary to the service- connected neck disability. Following the Board's February 2008 remand, the RO issued a November 2009 rating decision increasing the evaluation of the service-connected neck disability to 30 percent, effective on September 9, 2009. Inasmuch as a rating higher than 30 percent is available, and inasmuch as a claimant is presumed to be seeking the maximum available benefit for a given disability, the claim for higher rating as reflected on the title page remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. For period of the appeal, the service-connected neck disability is shown to have been manifested by more a level of functional loss due to pain that more nearly approximated that of forward flexion of the cervical spine restricted to less than 15 degrees. 3. During the period of the appeal, the service-connected neck disability is not shown to have been manifested by ankylosis of the cervical spine or periods of bed rest prescribed by a physician due to intervertebral disc disease. CONCLUSION OF LAW The criteria for the assignment of an evaluation of 30 percent, but not higher for the service-connected neck disability for the period of the appeal are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including the General Rating Formula for Diseases and Injuries of the Spine (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations provide that, upon the submission of a substantially complete application for benefits, VA has an enhanced duty to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Adequate notice in increased evaluation cases requires that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (3) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated in part Nos. 2008-7150, 2008-7115 (Fed. Cir. September 4, 2009). In the present case, considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim decided hereinbelow has been accomplished. In particular, the RO sent the Veteran a letter in September 2005 advising the Veteran that to establish entitlement to an increased rating for a service-connected disability, the evidence must show that the condition has become worse. The RO also sent the Veteran a letter in August 2006 informing him that a disability rating and an effective date for the award of benefits are assigned in cases where a claim is granted. See Dingess/Hartman, 19 Vet. App. at 484. The Board also notes that an August 2009 RO letter satisfied the (amended) notice requirements of Vazquez-Flores. Moreover, the RO's September 2005 letter also advised the Veteran that VA is responsible for getting relevant records held by any Federal agency, to include service records, Social Security Administration (SSA) records, and records from VA and other Government agencies; that he must provide enough information about the records to allow VA to request them; and that it was his responsibility to make sure VA received the records. In light of these letters, the Board finds that the Veteran has received notice of the elements required to support his claim, and notice of what evidence, if any, will be obtained by the Veteran, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). Although documents fully meeting the VCAA's notice requirements were not provided to the Veteran before the rating decision on appeal, the Board notes that the claim was fully developed and then readjudicated in a November 2009 Supplemental Statement of the Case (SSOC), which was issued after all required notice was provided. Accordingly, although the Veteran has not identified or demonstrated that any potential errors are prejudicial, the Board finds that any arguable lack of full preadjudication notice in this appeal has not, in any way, prejudiced the Veteran. See Shinseki v. Sanders, 07-1209 slip op. at 11-12 (April 21, 2009). The Board also finds that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the Veteran in connection with the claim on appeal. First, the Veteran's available service treatment record (STR) is on file. To the extent the Veteran's STR for his period of service from August 1974 to August 1977 is not associated with the claims file, the RO issued a Formal Finding in October 2006 indicating that after taking diligent and extensive efforts, the records are unavailable and that further attempts to obtain them would be futile. The Veteran was informed of this in a September 2006 letter, which also asked him to submit copies of any such records in his possession. He replied in September 2006 that he had no copies in his possession. In any event, as explained hereinbelow, the issue on appeal is entitlement to an increased evaluation. In such matters, it is the present level of disability, rather than the in- service severity, that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that regard, the claims file contains medical records from those VA and non-VA medical providers that the Veteran identified as having records pertinent to the period of appellate review. Neither the Veteran nor his representative has identified, and the file does not otherwise indicate, that any other VA or non-VA medical providers have additional records that should be obtained before the appeal is adjudicated by the Board. Accordingly, the Board finds that there are no further VA or non-VA medical providers having additional pertinent records that should be obtained before the appeal is adjudicated by the Board. See Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim). Second, the Veteran was afforded a VA examination most recently in September 2009 for the purpose of evaluating the severity of his service-connected neck disability. The Board finds that the VA examination, when considered with an October 2009 addendum, is adequate because, as shown, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). To the extent the Veteran testified at his October 2008 Board hearing that the prior, September 2005, VA examination was not adequate because the examiner did not use a goniometer to measure range of motion, did not do repetitive motion testing, or test for fatigue, weakness, or lack of endurance, the Board remanded the matter in November 2009 in light of the Veteran's assertion to afford him a more thorough VA examination. As indicated, this was accomplished in September 2009. The Board also notes in this regard that the provisions of 38 C.F.R. § 4.46 establish only that the use of a goniometer is "indispensable." The regulation does not require use of a goniometer. Further, the Veteran underwent a private (non-VA) evaluation in November 2005, which showed results of range of motion testing similar to that recorded by the September 2005 VA examiner. Moreover, the Veteran has not asserted, and the evidence does not show, that his symptoms have increased in severity since the September 2009 VA examination. For these reasons, the Board finds no reason to remand for further examination. Finally, the Veteran has been afforded a hearing before a Veterans Law Judge in which he presented oral argument in support of his claim. Accordingly, the Board finds that all necessary facts have been properly developed in regard to the Veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist in the development of evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also finds that there was substantial compliance with the February 2008 Board remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board directed the RO to send the Veteran a letter asking him to identify any health care providers having treatment records pertinent to his claim. This was accomplished by a March 2008 letter. As the Veteran's representative pointed out in their January 2010 Post-Remand Brief, the Veteran failed to respond to the Board's March 2008 letter. The Board's February 2008 remand also instructed the RO to schedule the Veteran for a VA examination to determine the current severity of his service-connected neck disability. As indicated, this was accomplished in September 2009 and completed by an October 2009 addendum. Because all directed action has been accomplished, further remand is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998); See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board). In conclusion, because all duties to notify and assist have been satisfied, the Board will proceed with consideration of the merits of the appeal. II. Analysis The Veteran is contending that a higher rating is warranted for his service-connected neck disability, which is currently evaluated as 20 percent disabling prior to September 9, 2009, and 30 percent disabling beginning September 9, 2009. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco, 7 Vet. App. at 58. A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different ratings may be warranted for different time periods during the period of appellate review (beginning within one year of his September 2005 claim for an increased evaluation). Disabilities of the spine, including the Veteran's service- connected cervical spine disability, are evaluated under the provisions of 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, effective September 26, 2003. Under the General Rating Formula (including Diagnostic Codes 5235 to 5243), the criteria are to be applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. General Rating Formula, Note (1). The schedular criteria are as follows: A 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. The highest rating, 100 percent, is assigned for unfavorable ankylosis of entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. General Rating Formula, Note (2). Further, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. General Rating Formula, Note (5). Disabilities of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. General Rating Formula, Note (6). Intervertebral disc syndrome (IVDS), under DC 5243, is to be evaluated either under the General Rating Formula (above), or, alternatively, under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. The schedular criteria for incapacitating episodes are as follows: A 10 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent rating is assigned intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Incapacitating Episodes Formula, Note (1). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Incapacitating Episodes Formula, Note (2). Finally, disabilities of the musculoskeletal system are primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Accordingly, when rating musculoskeletal disabilities, such as disabilities of the spine, factors in addition to those contained in the applicable rating code must also be considered. These consist of pain on movement, weakened movement, excess fatigability, and incoordination, and functional impairment due to pain. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical evidence in the present case demonstrating the severity of the service-connected neck disability during the period under review first consists of VA outpatient treatment notes from November 2004 to May 2005 showing that the Veteran complained of neck pain. In connection with his present claim, the Veteran underwent a VA examination in September 2005. With regard to the cervical spine, the VA examiner noted that he complained of constant pain with radiation to the shoulders. The Veteran had had no physician-prescribed bed rest during the prior year. He complained of flare-ups approximately every other day lasting 2 to 3 hours. He had not been employed for two years due to back and neck pain. On examination, the VA examiner found flexion of the cervical spine to 30 degrees without additional limitation due to pain; extension to 5 degrees and to 8 degrees with pain; right and left lateral flexion were to 15 degrees without pain and to 20 degrees with pain; right and left lateral rotation were to 15 degrees and to 20 degrees with pain. The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. The VA examiner further commented that the Veteran was "extremely uncooperative" in range of motion testing. Based on the results of the examination, the VA examiner diagnosed degenerative joint disease (DJD) of the cervical spine with normal neurological examination. The record on appeal also contain a private (non-VA) outpatient treatment note from October 2005 showing that the Veteran complained of tender range of motion. The assessment was that of severe neck pain with osteophytic changes consistent with degenerative disc disease (DDD) of the neck with tenderness and limited range of motion. (Results of range of motion in degrees are not provided.) In November 2005, the Veteran was further evaluated by a different private physician. The Veteran's complaints consisted of chronic severe neck pain made worse by looking up, repetitious movements, and stress, with improvement using pain pills. On examination, the physician found a moderate amount of spinal joint fixation at C5 and T1. There was forward displacement of the head noted in the sagittal plane. On range of motion testing, the physician found flexion to 25 degrees with pain indicated as level 2; extension to 10 degrees with pain indicated as level 3; right lateral flexion was to 15 degrees with pain indicated as level 2; left lateral flexion was to 15 degrees with pain indicated as level 3; right lateral rotation was to 20 degrees with pain indicated as level 2; and left lateral rotation was to 20 degrees with pain indicated as level 3. There was no indication as to whether the range of motion was additionally limited by fatigue, weakness, or lack of endurance following repetitive use. A cervical spine X-ray studies revealed loss of disc space in the lower cervical spine with osteophytic spurs noted along the vertebral bodies. There was also a loss of cervical lordosis. With regard to the cervical spine, the physician diagnosed cervical arthritis and degeneration of cervical "IVD" (intervertebral disc). The physician then commented that, in his professional opinion, the Veteran's "whole person disability" was far greater than 20 percent. The Veteran was a welder by trade, and the physician opined that he did not know how the Veteran could do anything but the simplest job. The Veteran told the physician that he had had some occupational therapy, but the Veteran's hands could not tolerate keyboarding. Plus, continued repetitive usage would probably make the latent carpal tunnel syndrome (CTS) more acute. In support of his claim, the Veteran wrote in his December 2006 Substantive (VA Form 9) that due to low back and neck arthritis, plus muscle spasms and stiffness, he could no longer work. He also testified during a January 2008 hearing that he presently worked at a job where he cleaned filters for a living. This job paid less than his prior job as a welder, which he could no longer work. With regard to the symptoms of his service-connected neck disability, the Veteran testified that he took medication for relief of his constant neck pain, but was told that surgery was not an option and physical therapy did not work because he had pain throughout the entire range of motion. Most recently, in September 2009, the Veteran underwent another VA examination. The examiner did not have the claims file for review, but with regard to the pertinent history, the examiner noted the Veteran's report of an in-service neck injury. With regard to the Veteran's current complaints, the VA examiner noted that the Veteran reported constant pain increased in frequency, duration, and intensity of flare-ups. The Veteran rated the pain as 4 to 5 and described it as "moderate"; he used medication for relief. The Veteran complained of flare-ups every day and involving pain rated as 8 out of 10 in severity; he described the pain during a flare-up as severe, and it lasted all day. The Veteran did not report any prescribed bed rest during the prior 12 months due to the service-connected neck disorder. The Veteran reported that he was working in the capacity of a desk job because he could not work his usual job as a welder. With regard to his activities of daily living (ADLs), the examiner found that there was some effect, but the Veteran used no assistive devices. The examiner further commented that the Veteran had diabetes type 2, which was a comorbid condition. On examination, range of motion testing revealed flexion to 10 degrees with pain; extension to 10 degrees with pain; right and left lateral flexion were to 6 degrees with pain; right and left lateral rotation were to 8 degrees with pain. There was no additional limitation of motion on repetitive use. Physical examination also revealed moderate paravertebral muscle spasm, grade 2, with tenderness. A magnetic resonance imaging scan (MRI) revealed DDD with degenerative retrospondylolisthesis; there was also stenosis at C5 and C6 bilaterally, involving the nerve roots. Based on the results of the examination, the VA examiner diagnosed cervical spondylosis; chronic cervical strain; cervical DDD with bilateral cervical radiculopathy; and degenerative retrospondylolisthesis of C5 with respect to C6. In an October 2009 addendum (in follow-up to the September 2009 VA examination), the same VA examiner reviewed the claims file. Based on this review, the examiner indicated that the Veteran's current cervical spine disability at least as likely as not caused functional impairment. In particular, the Veteran had been assigned to a desk job because he could not perform his usual job as a welder. A separate VA examiner noted that results of an October 2009 electromyograph (EMG) and a nerve conduction studies test (NCS) of the bilateral upper extremities were within normal limits. In comparing the Veteran's symptoms during the period of appellate review prior to September 9, 2009, as noted, to the rating criteria, the Board finds that the service-connected neck disability does more closely resemble the criteria for assignment of the next higher, 30 percent, rating based on functional loss due to pain. As indicated, a 30 percent evaluation is warranted if there is forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. See 38 C.F.R. § 4.71a. Here, the Veteran's forward flexion in September 2005 was to 30 degrees but the additional impairment due to pain was not fully assessed at that time, and his forward flexion was to 25 degrees with pain in November 2005. To the extent the private physician in November 2005 noted a moderate amount of spinal joint fixation at C5 and T1, he did not diagnosis ankylosis. See, e.g., Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision) (explaining that ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure). Clearly, the November 2005 assertions that the Veteran's "whole body disability" was far greater than 20 percent, the presents a basis for the assignment of a 30 percent rating for the service-connected neck disability. Therefore, when taking into consideration functional limitations due to the DeLuca factors, a higher evaluation of 30 percent is warranted for the entire period of the appeal based on his assertions of painful and limited motion of the cervical spine. However, a higher evaluation is not warranted on the basis of incapacitating episodes prior to September 9, 2009, because there is no evidence of bed rest prescribed by a physician. In fact, during his September 2005 VA examination, the Veteran specifically denied any bed rest prescribed by a physician, and the Veteran did not testify to the contrary during his January 2008 hearing. For the period in question, the Board finds in reviewing the medical and lay evidence above, that the service-connected neck disability does not warrant an evaluation in excess of the currently assigned 30 percent. As indicated, the next higher, 40 percent, rating is assigned where there is unfavorable ankylosis of the entire cervical spine. See 38 C.F.R. § 4.71a. However, the September 2009 VA examiner found that the Veteran retained limited motion of the cervical spine, and the examiner did not note unfavorable ankylosis. Therefore, even when taking into consideration functional limitations due to the DeLuca factors, a higher evaluation is not warranted. Plus, a higher evaluation is not warranted on the basis of incapacitating episodes at any time during the period beginning September 9, 2009, because there is no evidence of bed rest prescribed by a physician. In fact, the September 2009 VA examiner specifically noted that the Veteran did not report any prescribed bed rest during the prior 12 months due to the service-connected neck disorder. The Board also finds that separate evaluations are not assignable on the basis of objective neurological manifestations of the service-connected neck disability. To the extent the September 2009 VA examiner diagnosed cervical DDD with bilateral cervical radiculopathy, the Board points out that the Veteran previously raised separate claims for neurological disabilities of the upper extremities secondary to the service-connected neck disability. In its February 2008 decision, the Board denied the Veteran's claims. The Veteran did not subsequently file a motion for reconsideration, the issues of service connection for neurological disabilities of the bilateral upper extremities are not otherwise before the Board. In any event, the October 2009 VA examination addendum specifically indicates that neurological testing was normal. Accordingly, there is no showing of objective neurological manifestations, and therefore separate evaluations would not be warranted. Finally, "staged ratings" are not warranted except as presently assigned, because the schedular criteria for a higher rating were not met at any time during the period under appellate review. See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27. The Board's findings above are based on schedular evaluation. To afford justice in exceptional situations, an extraschedular rating may also be provided. 38 C.F.R. § 3.321(b). Here, however, referral for extraschedular consideration is not warranted. First, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology. Furthermore, the evidence does not show marked interference with employment in excess of that contemplated by the rating schedule. The Board recognizes that the VA examiner in the October 2009 addendum wrote that the Veteran's functional impairment was due to his neck disability. The private physician in November 2005 also opined that the Veteran could not do any but the simplest jobs. Also, the Veteran has indicated that he can no longer work in his chosen profession as a welder. Nonetheless, the Veteran September 2009 VA examiner commented that the Veteran had a comorbid disorder (diabetes type 2). Similarly, the private physician in November 2005 attributed the Veteran's functional limitations to his "whole person disability." Plus, the Veteran himself wrote in a December 2006 statement that his functional limitations were due to a combination of his nonservice-connected low back and service-connected neck disabilities. Finally, the Veteran testified during his January 2008 hearing that he was presently working at a desk job. Accordingly, there is no indication of marked interference with the Veteran's employment in excess of that contemplated by the rating schedule or other extraschedular assessment is not indicated. Further, the Veteran is not shown to have frequent periods of hospitalization, and there is no other evidence indicating that it would be impractical to apply the regular schedular standards. For these reasons, the Board is not required to remand the Veteran's claim for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338- 39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased evaluation of 30 percent, but no more for the service-connected neck disability for the period of the appeal is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs