Citation Nr: 1004079 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 04-16 389A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the cervical spine. 2. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to a rating in excess of 10 percent for tension headaches. 4. Entitlement to a rating in excess of 10 percent for bursitis of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, G. M. ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1976, and from April 1977 to April 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2002 decision by the Portland, Oregon, Veterans Affairs (VA) Regional Office (RO) which denied increased ratings for the service-connected disabilities at issue on appeal, and an April 2004 decision by the Pittsburg, Pennsylvania, RO that denied service connection for degenerative disc disease of the cervical spine. A personal hearing before the undersigned member of the Board was held in Washington, D.C. in August 2005. A copy of the hearing transcript has been associated with the Veteran's record. The Veteran's claims folder was transferred from the RO in Portland, Oregon to the RO in Washington, D.C. in September 2003 after the RO was notified that the Veteran was living overseas. In January 2004, the Veteran was notified that his claims folder had been transferred to the RO in Pittsburgh, Pennsylvania. These issues were remanded for further development April 2006. FINDINGS OF FACT 1. Degenerative disc disease of the cervical spine is attributable to service. 2. The Veteran's degenerative disc disease of the lumbar spine is not manifested by severe, recurring attacks, with intermittent relief; incapacitating episodes having a total duration of at least four weeks but less than six weeks during any 12-month period; forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; moderate limitation of motion of the lumbar spine is demonstrated throughout the appeal period. 3. From June 23, 2009, left-sided sciatica associated with degenerative disc disease, lumbar spine, has been shown to be no more than mildly disabling. 4. The Veteran's tension headaches are not manifested by prostrating attacks occurring on average of once a month over a several month period. 5. The Veteran's left shoulder disorder is not manifested by pain on use that would restrict left arm motion to the shoulder level. CONCLUSIONS OF LAW 1. Degenerative disc disease of the cervical spine was incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2009). 2. The criteria for a rating in excess of 20 percent for orthopedic manifestations of degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003); 5243 (2009). 3. The criteria for a separate 10 percent disability evaluation for left-sided sciatica associated with degenerative disc disease of the lumbar spine are met from June 23, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2009). 4. The criteria for an evaluation in excess of 10 percent for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.124a, Part 4, Diagnostic Code 8100 (2009). 5. The criteria for a disability in excess of 10 percent for the bursitis of the left shoulder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5019, 5201, 5202, 5203 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of 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 claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2009). The instant claims arise, in part, from the denial of entitlement to service connection for degenerative disc disease of the cervical spine, and increased ratings for disorders of the lumbar spine and shoulder, as well as a headache disability. The Veteran's claim for service connection for degenerative disc disease of the cervical spine is granted herein. As such, any deficiencies with regard to the VCAA for this issue are harmless and non- prejudicial. In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The Board notes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008, and several portions of the revisions are pertinent to the claim at issue. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. In this case, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). A letter dated in February 2008 informed the Veteran of the information necessary to substantiate his claims. He was also informed of the evidence VA would seek on his behalf and the evidence he was expected to provide. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. This letter also informed him of the information necessary to establish an effective date or disability rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). The Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then readjudicate the claim, such that the essential fairness of the adjudication - as a whole - is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (where the Federal Circuit Court held that a SOC or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the February 2008 notice was provided to the Veteran, the claim was readjudicated in a September 2009 supplemental statement of the case (SSOC). The Board is aware of the Court's recent decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008) [holding that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate 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 and daily life]. However, the Court's decision in Vazquez-Flores was recently vacated by the United States Court of Appeals for the Federal Circuit. See Vazquez-Flores v. Shinseki, 580 F. 3d. 1270 (Fed. Cir. 2009). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) (2009). Further, the claimant's service treatment records and pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations, most recently in June 2009, and an August 2009 clarification opinion was obtained, in order to assess the current severity of his service-connected disabilities. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has found the examination reports discussed herein to be adequate, as they provided current findings that are clearly relevant to the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. See 38 C.F.R. § 3.159(c) (4) (2009). The VA examination reports are thorough and supported by the record. The examinations noted above are therefore adequate upon which to base a decision. Further, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service connection In this case, the Veteran claimed that he has degenerative disc disease of the cervical spine as a result of his second period of honorable service. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis became manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2009). The Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. See Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. At the outset, the Board notes that the Veteran has been diagnosed with degenerative disc disease of the cervical spine. Thus, the first element of Hickson is satisfied for this issue, in that the Veteran has demonstrated the existence of a current diagnosis. See VA examination report, June 2009. Turning to the question of in-service disease or injury, the Board notes that the Veteran's service treatment records reflect complaints of neck pain beginning in August of 1989. On August 2, 1989, the Veteran reported with a sharp, constant pain between his shoulder blades for the prior two months. The examiner noted a tender left upper trapezium with pain on forward flexion, increasing with movement to left. The Veteran was diagnosed with a muscle strain. On August 15, 1989, the Veteran again reported with pain between the shoulders. A trapezoidal strain was diagnosed. The following day, the Veteran was seen for complaints in the left side of the neck for a period of three months. Range of motion of the cervical spine was within normal limits, however, the Veteran complained of pain in the cervical spine at C5-6 and the upper trapezoidal area. Range of motion of the cervical spine was again within normal limits, though tightness was reported. A mild forward head posture was observed, as well as tenderness on palpation. Possible cervical spine encroachment was noted, as was probably thoracic facet syndrome. On x-ray, the cervical spine was within normal limits. Finally, a December 1992 clinical record noted pain and stiffness on the left side of the neck for a period of five or six years. See service treatment records, August 2, 1989; August 15, 1989; August 16, 1989; December 14, 1992. Post service, the Veteran complained of stiffness in his neck during a June 1994 VA examination, just over one year following his second period of active service. Arthritis in his neck was noted at that time. See VA examination report, June 20, 1994. A private medical report, authored on March 27, 2002, noted a mild to moderate central bulge of the annulus at the C6-7 level, slightly more on the left. The central canal was also narrowed, with some encroachment of the left neural foramen at C6-7. During a May 2002 VA examination, the Veteran again complained of pain and stiffness in the cervical spine, as well as flare-ups. He described the sensation as feeling like muscle tension. He described the discomfort as moderately severe, daily, and lasting from 1-8 hours. He complained of decreased range of motion. See VA examination report, May 30, 2002. An additional VA examination was conducted in June 2009. The Veteran complained of neck pain, and reported that the pain had been present for approximately 30 years. He noted radiation of pain in to his shoulder blades, left worse than right. X-rays demonstrated anterior osteophyte formation at C6-7 and evidence of micro motion at that level. There was mild foramenal narrowing, bilaterally, worse on the left. An MRI revealed disc herniation at C6-7, with an increase in cervical lordosis. There was moderate to severe canal compromise. The Veteran was diagnosed with a C6-7 herniated disc, without radiation to the upper extremities. Further testing revealed mild loss of disc space height at C5-6, and degenerative marginal osteophytes and anterior ligamentous calcifications. The examiner stated that the Veteran's cervical spine disability had its onset during his period of active military service. See VA examination report, June 23, 2009. Following a request from the RO, a restatement of the June 2009 opinion was provided in August 2009. The examiner opined that it was likely that the Veteran's claimed cervical spine condition was related to his period of active duty. The examiner noted several medical treatises in which he referenced prior to reaching his conclusion, as well as his careful examination of the Veteran. See Opinion, August 12, 2009. In August 2005, the Veteran was afforded a Board hearing before the undersigned. At that time, the Veteran noted complaints of shoulder pain since 1988, as well as a stiffness in his neck which led to headaches. The Veteran attributed his pain to a compressed disc in his cervical spine. See Hearing transcript, pp. 7-9. The Veteran has demonstrated the in-service onset of neck pain (generally in the left side, specifically in C5-6 according to the August 16, 1989, service treatment report), as well as a current diagnosis of degenerative disc disease of the cervical spine (with mild loss of disc space height at C5-6 and encroachment of the left neural foramen at C6-7, with pain worse in the left than the right) coupled with a VA opinion linking this disorder to his period of honorable service. As such, service connection for degenerative disc disease of the cervical spine is granted. III. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2009). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether staged ratings are for consideration in this case; however, the evidence of record does not establish distinct time periods within the appellate period where the Veteran's service-connected disabilities resulted in symptoms that would warrant different ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2009). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2009). Degenerative disc disease of the lumbar spine In January 1994, the Veteran was granted a 20 percent disability rating for a lumbar back disability, rated as intervertebral disc syndrome under Diagnostic Code 5293. He filed a claim for an increased rating in January 2002. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca. However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2009). The Board notes that the schedular criteria for rating the spine have been amended twice during the pendency of the Veteran's appeal. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3- 2000 (Apr. 10, 2000). As such, the Board will assess the severity of the Veteran's service-connected low back disability under both the former, and revised criteria pertaining to ratings of the spine. Under the rating criteria in effect prior to September 23, 2002, intervertebral disc syndrome was evaluated as follows: Pronounced; 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, little intermittent relief.................................60 Severe; recurring attacks, with intermittent relief .......40 Moderate; recurring attacks.................................. ....... 20 Mild..................................... ........................................ 10 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). The regulations regarding intervertebral disc syndrome were revised effective September 23, 2002. Under the revised regulations, intervertebral disc syndrome was evaluated as follows: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 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. With incapacitating episodes having a total duration of at least six weeks during the past 12 months.............60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months................................... .......................40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months................................... .......................20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months................................... .......................10 Note (1): 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): 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. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) Under 38 C.F.R. § 4.71a, and prior to September 26, 2003, Diagnostic Code 5292, which pertained to limitation of motion of the lumber spine, was rated using the following criteria: Severe .................................... .....................40 Moderate................................. ....................20 Slight................................... ........................10 The Board notes that the rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6 (2009) Although the criteria under Diagnostic Code 5292 were less defined than the current criteria and numerical ranges of motion were not provided in the prior rating criteria, guidance can be obtained from the amended regulations discussed below. 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 goniometry. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). Prior to September 26, 2003, evaluations pertaining to lumbosacral strain were assigned as follows: Severe; with listing of the whole spine to the opposite side, positive Goldwaithe's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. ................... 40 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position ...................................................... 20 With characteristic pain on motion ...................... 10 With slight subjective symptoms only .................... 0 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Under Diagnostic Code 5285, ratings were provided for a demonstrable deformity of a vertebral body. Diagnostic Codes 5286 and 5289 provided ratings for complete bony fixation (ankylosis) of the spine. As to rating the Veteran under the criteria for ankylosis, it is noted that ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999). The regulations regarding diseases and injuries to the spine, to include intervertebral disc syndrome, were revised effective September 26, 2003. Under these revised regulations, back disabilities are evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, as follows: General Rating Formula for Diseases and Injuries of the Spine With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine.............100 Unfavorable ankylosis of the entire thoracolumbar spine .....................................................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.....................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine............................................... ..............30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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....................................................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.........................................................10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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. 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 combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months.............60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months................................... .......................40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months................................... .......................20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months................................... .......................10 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2009) As noted above, the criteria for rating intervertebral disc syndrome under Diagnostic Code 5293 that became effective on September 23, 2002, contained a note defining incapacitating episodes and chronic orthopedic and neurologic manifestations. The Federal Register version setting forth the final rule indicates that the three notes following the version of Diagnostic Code 5293 that became effective on September 23, 2002, were deleted when intervertebral disc syndrome was reclassified as Diagnostic Code 5243 in the criteria that became effective on September 26, 2003. This was apparently inadvertent and has now been corrected by 69 Fed. Reg. 32,449, 32,450 (June 10, 2004), a final correction that was made effective September 26, 2003. In this case, following the Veteran's claim for a rating in excess of 10 percent disabling, he was afforded a VA orthopedic examination in May 2002. The Veteran complained of chronic low back pain. He also complained of weakness, stiffness, fatigability, and lack of endurance. He denied any leg weakness or numbness, however he did note an ache which extended into his bilateral lower extremities. He denied flare-ups. Upon examination, the spine was well-aligned. No spasms were noted. Forward flexion was to 58 degrees with extension to 12 degrees. Right rotation was to 45 degrees, lateral flexion was to 17 degrees to the left and 22 degrees to the right. X-rays noted disk space narrowing at L5-S1, diagnosed as degenerative disc disease at that level. Neurological examination revealed a steady gait with no limp, and heel-toe walking was not a problem. Sciatic manifestations were neither noted nor diagnosed. See VA examination report, June 26, 2002. A private neurological report, authored in September 2008, noted that the metabolic and inflammatory evaluation for neuropathy was negative. Sensory loss up to his ankles was noted, however sciatica linked to his disability of the lumbar spine was not diagnosed. See Report, September 22, 2008. The Veteran was afforded an additional VA examination in June 2009. At that time, the examiner noted complaints of back pain, as well as left-sided sciatica. Lesage's sign was positive. One incapacitating episode lasting for two days, within the prior 12 months, was reported. Numbness and paresthesis was reported as well. On examination, flexion was to 80 degrees, extension was to 20 degrees, bilateral lateral flexion was to 25 degrees, and bilateral lateral rotation was to 30 degrees. Objective evidence of pain on range of motion was noted. After three repetitions, flexion was to 65 degrees, and extension was to 20 degrees. The Veteran was diagnosed with mild spondylosis of the lumbar spine, intervertebral disc syndrome, lumbar spine, and left- sided sciatica. The examiner stated that the Veteran suffered an incapacitating episode having a total duration of at least one week, but less than 2 weeks, during the prior 12 months. The examiner stated that the Veteran displayed signs and symptoms of left-sided sciatica. See VA examination report, June 2009. While the Veteran's VA outpatient treatment reports noted continuing treatment for her lumbar spine disability, those reports were negative for findings more severe than those demonstrated during the VA examinations of record. On review of the evidence of record, the Board finds that the Veteran's low back disability is appropriately evaluated as 20 percent disabling. The evidence does not show incapacitating severe; recurring attacks, with intermittent relief, or episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Further, the evidence fails to demonstrate severe limitation of motion of the lumbar spine, or lumbar strain with listing of the whole spine to the opposite side, positive Goldwaithe's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. At most, the Board finds that the orthopedic manifestations of the Veteran's lumbar spine disability are productive of moderate limitation of motion of the lumbar spine under former Diagnostic Code 5292. The evidence of record, when viewed as a whole, also fails to establish that the Veteran's lumbar spine disability resulted in forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Forward flexion to 58 degrees was noted during the Veteran's May 2002 examination, and flexion to 80 degrees was noted during his VA examination in June 2009. Based on the above findings, the Board finds that the evidence does not support the assignment of a higher disability rating under Diagnostic Code 5243, based on intervertebral disc syndrome. The Board acknowledges the fact that each examiner diagnosed the Veteran with lumbar disc disease. However, only one incapacitating episode was reported within a 12-month period during the appellate period. As such, a higher rating of 40 percent is not warranted under Diagnostic Code 5243. Forward flexion was no less than 65 degrees following three repetitions (and 80 degrees initially) in June 2009. Further, unfavorable ankylosis has never been demonstrated. As such, a higher rating is not warranted pursuant to the General Rating Formula for Diseases and Injuries of the Spine. While mild spondylosis was noted in June 2009, the Veteran did not exhibit severe spinal stenosis or ankylosis, thus a rating in excess of 20 percent under Diagnostic Codes 5238 and 5241 are inapplicable. Further, the Board finds that the medical evidence does not reflect objective evidence of pain, instability, or weakness greater than that contemplated by the 20 percent rating. Each VA examination report considered the Veteran's complaints of pain on motion when it recorded the Veteran's range of motion. Following repetitive testing during the Veteran's most recent examination, his forward flexion was to 65 degrees. In view of the forgoing, the Board finds that the Veteran's complaints and the directives of DeLuca were considered. As such, the application of 38 C.F.R. §§ 4.40, 4.45, and 4.59 therefore does not provide a basis for a rating higher than 20 percent for the Veteran's lumbar spine disability. As noted, the Board finds that the orthopedic manifestations of the Veteran's lumbar spine disability are productive of moderate limitation of motion under Diagnostic Code 5292 throughout the appeal period. However, the Board has also considered a separate rating for neurological manifestations of the Veteran's low back disability under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The medical evidence reveals that the Veteran reported a history of bilateral sciatica during his June 2009 VA examination. The June 2009 VA examiner noted sciatica by history, and Lesegue's sign was positive. The Veteran reported left-sided numbness and tingling, generally in the ulnar nerve pattern and in his left leg. No pain was associated with the numbness. Neurological testing prior to June 2009 did not reveal an objective manifestation of impairment of the sciatic nerve associated with the Veteran's degenerative disc disease of the lumbar spine. However, the June 2009 examiner indicated that the Veteran displayed signs and symptoms of left-sided sciatica. Based on the foregoing, the Board finds that the Veteran's left-sided sciatica is consistent with no more than mild incomplete paralysis. However, moderate incomplete paralysis is not shown. In June 2009, the Veteran's upper and lower extremity motor test was 5/5, bilaterally, with sensation intact. Thus, Board finds that a separate 10 percent evaluation, but no more, for mild left-sided as a neurological manifestation of his low back disability, is warranted from June 23, 2009. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009) (noting that a 10 percent rating is assigned for mild incomplete paralysis and a 20 percent rating is assigned for moderate incomplete paralysis). Tension headaches By rating action in August 1994, service connection was established for tension headaches and a 10 percent evaluation was assigned. The Schedule for Rating Disabilities does not include a disability specifically for tension headaches. Therefore, the Veteran's headache disorder is rated analogous to migraine headaches under DC 8100, which provides for a 50 percent rating with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; 30 percent with characteristic prostrating attacks occurring on average of once a month over the last several months; 10 percent with characteristic prostrating attacks averaging one in two months over the last several months, and a noncompensable evaluation with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2009). During the Veteran's May 2002 VA examination, he complained of left-sided headaches. He noted that mild headaches occurred on a daily basis, lasting all day. Flare-ups were noted to occur once per week. These headaches were more severe, and lasted from one to eight hours. However, even during the flare-ups, the Veteran reported that he was generally able to continue working, though a decrease in focus and concentration was noted. He did not report the need to lay down or retire to a quiet, dark environment. On VA neurological examination in July 2009, a 30-year history of headaches was noted. They were left-sided, gradual, and lasted hours to days, 3 to 4 times per week, with no sensitivity to light or sound. Instead the Veteran reported that they are linked to tension. Prostrating attacks were not reported. While the Veteran's representative claimed that the Veteran's headaches were severe enough to warrant an evaluation of 30 or 50 percent (see Hearing transcript, p. 5), prostrating attacks occurring on average of once a month over the last several months, were not reported during either VA neurological examination. In fact, during the VA examination of record at the time of the Veteran's Board hearing, he reported that he was generally able to continue working during the duration of a severe headache, and that he did not need to lay down or retire to a quiet, dark environment. As such, the criteria for a rating in excess of 10 percent for tension headaches have not been met. Bursitis of the left shoulder The Veteran was awarded service connection for bursitis of the left shoulder in January 1994. The rating criteria for the shoulder are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 (2009). Diagnostic Codes 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2009). The medical evidence shows that the Veteran is right handed. Therefore, the criteria referencing the minor extremity are for consideration here. The Veteran's left shoulder disability is currently rated at 10 percent for bursitis under Diagnostic Code 5019. Pursuant to DC 5019, bursitis is evaluated based on limitation of motion of the affected part, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5019. Limitation of motion of the shoulder is rated pursuant to Diagnostic Code 5201. Under Diagnostic Code 5201, for a non-dominant arm, a 20 percent evaluation is provided for limitation of motion of the arm at shoulder level; a 20 percent evaluation may be assigned for limitation of motion midway between the side and shoulder level; and a 30 percent evaluation may be assigned for limitation of major arm motion to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Full range of motion of the shoulder is 0 to 180 degrees of abduction and forward elevation (flexion) and 0 to 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. Here, a rating in excess of 10 percent under Diagnostic Code 5201 is not indicated. There is no credible evidence that pain on use would restrict left arm motion to the shoulder level as required for a 20 percent rating under Diagnostic Code 5201. The report of the May 2002 VA examination reflects no limitation of motion of the left arm. Forward flexion was to 180 degrees, abduction was to 180 degrees, and external and internal rotation was to 90 degrees, with no distress reported during testing. The Veteran was diagnosed with a normal left shoulder, and shoulder pain was noted to be related to his cervical spine disability. The report of the June 2009 VA examination revealed chronic subscapularis, as well as muscle spasms and muscle strain. Constitutional symptoms of arthritis were not present. On examination, there was no deformity, giving way, instability, weakness, incoordination, dislocation, subluxation, locking, effusion, or inflammation. Only pain and stiffness were reported. Left flexion was to 180 degrees, as was abduction, with left internal and external rotation to 90 degrees. There was no objective evidence of pain following repetitive motion, nor was there additional limitation following three repetitions. As the Veteran's arm was not limited in motion to the shoulder level, even with consideration of additional functional impairment due to pain and repetitive use, a 20 percent evaluation under Diagnostic Code 5201 is not warranted. Further, rating in excess of 10 percent is not warranted pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5203. This rating contemplates impairment of the clavicle or scapula with dislocation; nonunion with or without loose movement; or malunion. In the alternative, the disability may be rated on impairment of function of a contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2009). A 20 percent rating is warranted if there is evidence of dislocation of the shoulder or nonunion with loose movement, and these criteria have not been demonstrated. The Board has also considered other potentially applicable Diagnostic Codes. A rating under Diagnostic Code 5202 is clearly not indicated. 38 C.F.R. § 4.71a (2009). Fibrous union, nonunion, or loss of the humeral head have not been reported in VA examinations, treatment records, or radiological reports. Moreover, there is no evidence of record of marked or moderate deformity due to malunion. A rating under Diagnostic Code 5200 is clearly not applicable in the present case because there is no medical evidence that the Veteran has ankylosis of the left shoulder joint, even with consideration of additional functional impairment due to pain and repetitive use. 38 C.F.R. § 4.71a (2009). During the Veteran's personal hearing, he argued that while service connection has been established for bursitis of the left shoulder, there is no diagnostic evidence of any disability involving his left shoulder, including arthritis or bursitis. The Veteran testified that he always had pain in the area of his left shoulder that radiated up his neck and down the left arm with occasional tingling, numbness, and weakness in the left upper extremity, and that he assumed that the various doctors who related his symptoms to a left shoulder disability were correct. However, post-service medical records, including a private MRI in February 2002, have failed to reveal any evidence of a left shoulder disability. Furthermore, a private MRI of the cervical spine in March 2002 revealed central disc bulging at the C5-6 and C6-7 levels. The Veteran contends that his symptoms in service were misdiagnosed as bursitis in the left shoulder and that the root cause of his problem was actually his cervical spine. See Hearing transcript, p. 4. As discussed above, the Board has considered additional functional limitation due to factors such as pain, weakness, incoordination and fatigability. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. Based on the medical evidence of record, the Board finds that the Veteran's disability picture is consistent with the assigned 10 percent rating. Conclusion A review of the record reveals that the RO did not refer the evaluation of the Veteran's service-connected disabilities to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2009). That regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. There is a three-step analysis for determining whether an extraschedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. It is not necessary, in this case, to go any further than the first step of the Thun analysis for any issue on appeal. In each instance, the rating criteria are not inadequate. Higher ratings are available for each disability, but the Veteran simply does not meet those criteria. In light of the foregoing, the Board finds that a higher rating is not warranted for the Veteran's lumbar spine disability, tension headaches, or left shoulder disorder. In determining whether higher ratings are warranted for service- connected disabilities, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a) (2002); Gilbert. In this case, although the evidence supports a separate rating of 10 percent for left-sided sciatica involvement associated with lumbar degenerative disc disease from June 23, 2009, the preponderance of the evidence is against a rating in excess of 20 percent for the orthopedic manifestations of the Veteran's service-connected lumbar spine disability, 10 percent for the Veteran's tension headaches, or 10 percent for the Veteran's left shoulder disorder. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for degenerative disc disease of the cervical spine is granted. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to a separate 10 percent rating for left-sided sciatica is granted effective from June 23, 2009, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for tension headaches is denied. Entitlement to a rating in excess of 10 percent for bursitis of the left shoulder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs