Citation Nr: 1034366 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 92-22 957 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for degenerative joint disease (DJD) of the cervical spine, from December 20, 1989 through September 22, 2002. 2. Entitlement to a rating in excess of 30 percent for DJD of the cervical spine, from September 23, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active military service from May 1974 to May 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a June 1991 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for DJD of the cervical spine, effective April 9, 1990. In October 1991, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. According to a June 1992 supplemental statement of the case (SSOC), a statement of the case (SOC) was issued in November 1991. Correspondence from the Veteran's representative (VA Form 1-646) dated in May 1992 was accepted as a substantive appeal, in lieu of a VA Form 9. In March 1994, the Board remanded the claim on appeal to the RO for additional development. After accomplishing the requested action, the RO issued a February 1995 decision increasing the rating for DJD of the cervical spine from 10 to 30 percent, effective December 20, 1989 (the date of the claim for service connection). In a September 1995 SSOC, the RO continued the 30 percent rating and returned the matter to the Board for further appellate consideration. In November 2000, the Board remanded the claim to the RO to schedule the Veteran for a Board hearing at the RO (Travel Board hearing). In May 2002, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In December 2008, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the requested action, the RO continued the 30 percent rating (as reflected in a December 2009 SSOC), and returned the matter to the Board for further appellate consideration. As the appeal emanates from the Veteran's disagreement with the initial rating of 30 percent assigned following the grant of service connection for DJD of the cervical spine, the Board has characterized the claim for an initial rating, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing higher initial rating claims from claims for already service- connected disabilities). Moreover, although the RO granted a higher, 30 percent rating from December 20, 1989, as a higher rating for this disability is assignable, and the Veteran is presumed to seek the maximum available benefit, the claim for higher rating remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, as will be explained below, the Board has recharacterized the appeal as encompassing both matters set forth on the title page. The Board's decision on the matter of an initial rating in excess of 30 percent, from December 20, 1989 through September 22, 2002, is set forth below. The matter of a rating in excess of 30 percent, from September 23, 2002, is addressed in the remand following the order; this matter is being remanded to the RO, via the AMC, for additional development. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, historically, the Veteran also perfected an appeal from a September 1990 rating decision in which the RO, inter alia, denied a compensable rating for tinea versicolor; and denied a rating in excess of 10 percent for residuals of a gunshot wound to the low back. In a December 1999 decision, the RO assigned a 20 percent rating for residuals of a gunshot wound based on clear and unmistakable error, effective from the day after the Veteran separated from service, and, in April 2003, the Board denied a rating in excess of 20 percent. In a February 1995 decision, the RO increased the rating from 0 to 10 percent for tinea versicolor, and, in December 2008, the Board denied a rating in excess of 10 percent. The Veteran also perfected an appeal from an August 1995 rating decision, in which the RO granted service connection and assigned an initial 30 percent rating for PTSD, effective June 22, 1993. The Veteran appealed both the initial rating and effective date assigned. In April 2003, the Board granted a 100 percent initial rating for PTSD, but denied an effective date earlier than June 22, 1993. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. From the December 20, 1989 effective date of the grant of service connection through September 22, 2002, the Veteran's DJD of the cervical spine disability was manifested by limited motion and radicular complaints (such as pain and numbness in the shoulders/arms, and decreased grip strength); however, no ankylosis or more than moderate intervertebral disc syndrome (IVDS) with recurring attacks was shown.. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for DJD of the cervical spine, from December 20, 1989 through September 22, 2002, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.71, 4.71a, Diagnostic Codes (DCs) 5287, 5290, 5293 (as in effect prior to September 23, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. 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 that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the RO's initial adjudication of the claim was in June 1991, several years before enactment of the VCAA. Post rating, a January 2009 letter provided notice as to what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2009 letter also provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman, and specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 in effect prior to May 30, 2008).Moreover, June 1992 and January 2009 SSOCs set forth the criteria for a higher rating for cervical spine disability in effect prior to September 23, 2002 (which suffices, in part, for Dingess/Hartman). After issuance of the above-described notice, and opportunity for the Veteran to respond, the December 2009 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The Board notes that the record includes no letter specifically notifying the what the evidence must show to support his claim for a higher rating. However, on these facts, the absence of such notice is not shown to prejudice the Veteran, inasmuch as the In this regard, the claims file reflects that the Veteran and his representative had actual knowledge of the information and evidence necessary to support his claim for a higher initial rating. Through his Board hearing testimony, the Veteran made clear that he understood that higher ratings were available based on increasing symptomatology. He also testified about the current symptomatology associated with his service connected cervical spine disability. Given the Veteran's statements, the Board finds that the omission of a specific letter pertinent to the claim for higher rating is harmless. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA treatment records, private medical records from Cybercare, Inc. and Dr. S., and the reports of VA examination in November 1990, July 1994, August 1998, and March 1999. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative, on his behalf. No further RO action on this matter, prior to appellate consideration, is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background An April 1990 VA treatment record notes that an X-ray revealed osteoarthritis of the cervical spine with discogenic disease. The Veteran complained of pain in his neck and shoulder. The Veteran was hospitalized in June and July 1990 for alcohol dependence. A discharge summary notes that he had cervical spine DJD, but that the physical examination was essentially within normal limits. An X-ray showed narrowing of several intervertebral discs. The report of an October 1990 VA examination reflects the Veteran's complaints of neck pain. Range of motion was from 40 degrees of extension to 60 degrees of forward flexion. Lateral flexion was to 30 degrees, bilaterally, and rotation was to 50 degrees, bilaterally. There were no cervical muscle spasms or crepitations and both upper extremities were of anatomical contour with normal range of motion and no atrophy. A May 1991 VA treatment record reflects the Veteran's complaints of neck pain radiating into his shoulder and arms; he had full range of motion and the impression was radicular pain. A May 1991 X-ray revealed degenerative disease with spur formation and narrowing disc space between the C5 and C6 vertebrae. A June 1991 neurology note reflects that the Veteran had mild decreased sensation to pinprick in the left arm. A June 1991 VA magnetic resonance imagining (MRI) showed slight osteophytic changes at the C5-C6 level with degeneration of the disc material. A July 1991 neurology note reflects that the Veteran complained of pain in his shoulders shooting into his arms and head. On physical examination, there were no neurological deficits established. An August 1991 VA neurology note reflects that the Veteran had decreased biceps and brachioradial reflexes. There were no significant sensory disturbance and no atrophy. The diagnosis was C5-C6 radiculopathy secondary to osteoarthritis. In October 1991, the Veteran complained that he had pain and numbness down his arms "on and off" and that Tylenol 3 offered some pain relief. On physical examination, the right upper extremity was slightly weaker than the left; there was decreased sensation in the right forearm, and deep tendon reflexes were 1+ throughout. A November 1992 VA treatment record reflects the Veteran's complaints of cervical spine pain and numbness in the right arm when he sneezed. A nonfocal neurological examination revealed no atrophy or weakness. A February 1993 VA MRI revealed moderate degenerative changes in the C3 through C6 intervals associated with posterior ridging, more pronounced at the C3-4 and C5-6 levels. Disc material was noted in the left paramidline location at the C3-4 level and there was mild bilateral foraminal stenosis at the C5-6 level. The report of a July 1994 VA examination reflects the Veteran's complaints of neck pain in all neck movements and in the right trapezius area. Range of motion was from 14 degrees of extension to 24 degrees of forward flexion. Right and left lateral flexion was to 20 and 26 degrees, respectively. Right and left rotation was to 50 and 30 degrees, respectively. The examiner noted that an exact evaluation could not be done due to poor cooperation and extreme pain sensitivity. Deep tendon reflexes were 2+ in the upper extremity; sensitivity to pinprick was intact. It was noted that a June 1992 X-ray showed posterior marginal osteophytes and narrowing of the intervertebral disc spaces. A July 1994 MRI revealed degenerative disc disease (DDD) at C3-4 through C5-6 levels. There was a tiny central disc protrusion at C3-4, which minimally contacted and flattened the anterior aspect of the spinal cord. No other levels of cord compression were seen. A January 1996 VA treatment record notes that motor examination was 5/5 and sensory was intact. Deep tendon reflexes were 2/4. In April 1996, the Veteran complained of arm and neck pain with spasms. It was noted that clinically, the Veteran had the same recurrent spine pain with no significant changes in the examination. In June 1996, he complained of increased pain. He said that he had temporary relief after a facet block, but he was still having difficulty with grip strength, right more than left. On physical examination for weakness in the right hand, the physician noted that there was no difference (presumably when compared to the left). In August 1996, the Veteran complained of neck pain going into both shoulders and the medial three fingers of the hands, and, on occasion, all fingers of the hands. He said that he had had these symptoms intermittently for 1 year following a motor vehicle accident (MVA). He said he had had a similar problem in the past. The physician reviewed MRIs of the Veteran's spine, hands, and wrists and stated that the MRIs did not fully explain the Veteran's deficit. The physician noted that the Veteran also had a background of schizoaffective disorder. A May 1997 VA treatment record reflects the Veteran's complaints of right shoulder pain radiating into his right arm. Motor examination of the arms was 5/5 except on the ulnar side of grip and flexion of the pinkie finger on the right side, which was 4/5. There was decreased sensation to pinprick on the lateral hand and forearm and decreased sensation to touch to all modality. A note was made to rule out an acute herniated nucleus pulpous. A July 1997 neurology note reflects that the Veteran reported falling off a step ladder in May and experiencing numbness in the 5th digit and thumb of the right hand, which resolved over time. On sensory examination, there was deceased sensation to pinprick of the lateral and medial aspect of the left forearm and the medial aspect of the right forearm. There was decreased diameter of the right forearm. The assessment was cervical DJD with chronic pain syndrome and schizoaffective disorder. An electromyograph (EMG) was recommended to rule out carpal tunnel syndrome. The results of an October 1997 EMG were suggestive of poly- sensory neuropathy. It was noted that it seemed to be an axonal disorder and there was no evidence of root lesion. An October 1997 neurology record notes that the Veteran was still complaining of neck pain and numbness of the bilateral upper extremities with activity, right greater than left. The pain was characterized as shooting pain, relieved by stopping activity, worsened by sitting. It was noted he had 5/5 strength, normal tone, no atrophy, and that range of motion of the cervical spine was normal. An April 1998 VA neurology record indicates that the Veteran continued to have the same cervical spine complaints. Motor examination was 5/5 diffusely, and there was no atrophy. Sensory examination was inconsistent with decreased sensation to light touch and pinprick in the left hand. It was noted that an EMG had found axonal polyneuropathy of questionable etiology. The report of an August 1998 VA examination reflects the Veteran's complaints of progressively worsening cervical spine pain. Range of motion was from 0 degrees of extension to 30 degrees of forward flexion. Right and left later flexion was to 20 and 0 degrees, respectively. Bilateral rotation was to 20 degrees. Deep tendon reflexes of the upper extremities were 1+. An X-ray of the cervical spine showed DDD with hypertrophic changes. A January 1999 MRI revealed similar findings as previous MRIs and the impression was stable appearance of the cervical spine from the examination performed in May 1997. The report of a March 1999 VA examination reflects the Veteran's complaints of cervical spine pain and right-sided radiculopathy. He said he was also having numbness and tingling of the left shoulder into the fingers. On physical examination, range of motion was from 10 degrees of extension to 28 degrees of forward flexion. Right and left lateral flexion was to 26 and 20 degrees, respectively. Right and left rotation was to 16 and 12 degrees, respectively. It was noted that pain was the Veteran's main problem and that he even had pain at rest. There was objective evidence of painful motion and muscle spasms. There was no essential weakness. There was tenderness at the C6-7 level. There was abnormal biceps, triceps, and supination jerks. There was sensory deficit to pinprick in the right hand, and the middle, ring, and little fingers. The examiner noted that compared to the July 1994 VA examination, there was mild deterioration in range of motion in the cervical spine due to pain. A May 1999 VA treatment record reflects that the Veteran was seen for a routine visit. Motor strength was symmetrical and deep tendon reflexes were 2+ bilaterally. In August 1999, the Veteran complained of weakness in his right arm and hand. He said that he frequently dropped things after a short period of time. He said he had neck pain radiating mostly down his right arm after a sudden movement. He also described numbness in all four limbs, worse in his arms. On physical examination, he had decreased grip strength 4/5 in the right arm. Sensation was intact C5-T1. X-rays showed C4-5 foraminal narrowing. The impression was chronic cervicalgia and negative elbow pathology. In September 1999, the Veteran complained of pain in both elbows. There were no sensory deficits. The impression was chronic cervicalgia and lumbago due to spondylosis, multi-joint affectation possibly osteoarthritis. A note was made to rule out carpal tunnel syndrome. An October 1999 occupational therapy note reflects that manual muscle tests of the right upper extremity was 5/5 in all muscle groups. On the left, the shoulder was 4-/5; the elbow was 4+/5; pronation and supination was 4+/5; and wrist flexion and extension was 4-/5. Grip strength using a dynamometer measured: 100 pounds, 60 pounds, and 65 pounds on the right; and 60 pounds, 55 pounds, and 62 pounds on the left. Pinch grip was as follows: 2 pinch was 9 pounds on the right and 7 pounds on the left; 3 chuck jaw was 5 pounds on the right and 4 pounds on the left; lateral pinch was 17 pounds on the right and 12 pounds on the left. Fine motor skills using a 9 hole pet test revealed 30 seconds on the right and 31 seconds on the left. The Veteran had positive phalens with pain on the back and ventral side of his forearm. He also had positive tinels on the left side at the medial epicondyle with pain felt down the ulnar side of forearm and wrist. It was noted that the Veteran had decreased range of motion in the upper extremities and decreased muscle strength on the left side. A November 1999 neurology note reflects that an EMG was significant for mild sensory peripheral neuropathy and right carpal tunnel syndrome. A June 2000 neurology clinic note reflects that the Veteran had decreased power in the left hand grip with diminished sensation in his lateral upper extremities. The diagnosis was cervical and lumbar DDD and spondylosis. In November 2000, it was noted that the Veteran had full function on his activity of daily living, and was full duty as a painter. Motor strength was 5/5 except for the hand grip, which was -5/5. Deep tendon reflexes were 2+. Coordination and sensation was within normal limits. It was noted that electophysiologic finings were suggestion of mild polysensory neuropathy. A December 2000 occupational therapy note reflects that the Veteran was independent in all activities of daily living, but said that he had difficulty with activities requiring fine motor skills such as buttoning and lacing. A December 2000 physical therapy evaluation notes that range of motion was 20 degrees on extension, 35 degrees on right lateral flexion, 25 on left lateral flexion, 30 degrees on right rotation, and 20 degrees on left rotation. Subsequent physical and occupational therapy notes reflect continued complaints of pain, numbness and weakness. A January 2001 EMG revealed findings suggestive of borderline sensory neuropathy of the ulnar nerves suggestive of diabetic neuropathy. A January 2001 occupational therapy note reflects that the Veteran had made improvements in range of motion of the neck, but had no improvement in the area of grip strength - although he did report decreased incidence of dropping objects by about 25 percent. A November 2001 X-ray showed DDD at the C3-4 and C5-6 levels. A December 2001 MRI revealed minor degenerative spondylosis with no canal or foraminal stenosis. VA outpatient treatment records dated in 2001 and 2002 show treatment with TENS and kinesiotherapy. Private medical records from Cybercare, Inc., reflect that the Veteran had work-related accidents in November 2001 and March 2002. A December 2001 initial evaluation reflects that he fell off a ladder and hit his right shoulder, neck, low back and head in November 2001. Range of motion of the cervical spine was from 15 degrees of extension to 30 degrees of forward flexion. Lateral flexion was to 15 degrees, bilaterally. Right and left rotation was to 40 and 45 degrees, respectively. Motor examination was significant for weakness in the right deltoid and trapezius muscles, 4/5. Peripheral reflexes were diminished in the right biceps reflex, 1/4. On sensory examination, hypoesthesia was noted in the right C5 and C6 dermatomes. The diagnosis was traumatic paracervical myofascitis with radiculopathy. A January 2002 private medical record reflects that motor examination was significant for weakness in the right deltoid, triceps, grip, quadriceps and tibialis anterior muscles, 4/5. Sensory examination was significant for pinprick hypoesthesia in the right C6, C7, and C8 distributions. Deep tendon reflex were diminished in the right triceps, 1/4. Range of motion of the cervical spine was from 20 degrees on extension, and to 30 degrees on forward flexion. Lateral flexion was to 20 degrees, bilaterally. Rotation was to 50 degrees, bilaterally. A January 2002 X-ray revealed straightened lordosis and multilevel spondylitic change. Later in January 2002, a private medical record reflects that cervical range of motion was from 40 degrees on extension to 50 degrees on forward flexion. Bilateral lateral flexion was to 20 degrees and bilateral rotation was to 70 degrees. There was weakness in the right deltoid, triceps and biceps muscles, 4/5; hypoesthesia in the right C6 dermatome, and decreased right biceps and brachioradialis reflexes, 1/4. Two weeks later, range of motion of the cervical spine was from 35 degrees of extension to 45 degrees of forward flexion. Bilateral lateral flexion was to 20 degrees and bilateral rotation was to 65 degrees. Hypoesthesia in the right C7 dermatome was noted. A February 2002 MRI from a Dr. S., a private physician, showed straightened lordosis; and C3/4, C4/5, C5/6 central herniations with cord impingement and flattening noted. An April 2002 private medical record reflects that range of motion of the cervical spine was from 20 degrees on extension to 30 degrees on forward flexion. Bilateral lateral flexion was to 10 degrees and bilateral rotation was to 50 degrees. Sensory was significant for hypoesthesias in the left C5, C6, and C7 dermatomes. Motor examination was significant for weakness in the left trapezius, deltoid, and grip muscles, 4/5. There were decreased left triceps and biceps reflexes, 1/4. There were similar findings during a June 2002 evaluation; range of motion of the cervical spine was from 25 degrees on extension, to 40 degrees on forward flexion; bilateral lateral flexion was to 25 degrees; and bilateral rotation was to 60 degrees. In July 2002, range of motion was from 35 degrees on extension to 45 degrees on forward flexion; right and left lateral flexion was to 10 and 15 degrees, respectively; bilateral rotation was to 65 degrees. In August 2002, range of motion findings were the same as in July 2002. An August 2002 MRI from Dr. S. revealed reversed lordosis, and bulging discs from C3 to C7 with cord impingement and spinal stenosis. An August 2002 EMG revealed findings suggestive of bilateral C7 and C8 radiculopathies. A September 2002 VA treatment record reflects the Veteran's ongoing complaints of neck pain going into his shoulders, left greater than right. It was noted that an August 2002 MRI of the spine showed mild straightening with mild reversal of the normal lordosis and degenerative loss of vertebral body height at C3, C4 and moderate narrowing of the canal by disc/ridge changes, most impacted at the C3-4 and C5-6 levels, mild flattening of the secal sac, no signal cord change. Motor examination was 5/5 except for the right triceps, which was 4-/5. The impression was moderate cervical stenosis, radiculopathy, no myelopathy. III. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The Board points out that the medical evidence reflects that the Veteran has IVDS of the cervical spine as well as DJD; however, the Veteran's medical treatment providers have used these terms interchangeably. Furthermore, an August 1991 neurological treatment record notes that the cervical spine radiculopathy was secondary to arthritis. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Hence, in this case, the Board has considered all of the Veteran's cervical spine symptoms in evaluating his service-connected disability. Historically, the Veteran's cervical spine DJD has been evaluated under DC 5003, for degenerative arthritis, which, in turn, is evaluated on the basis of limitation of motion of the affected part. See 38 C.F.R. § 4.71a. Prior to September 26, 2003, limitation of motion of the cervical spine was evaluated under DC 5290. See 38 C.F.R. § 4.71a. Effective September 23, 2002, the criteria for rating IVDS were revised, and, effective September 26, 2003, VA revised the criteria for rating all disabilities of the spine, including IVDS. As there is no indication that the revised criteria are intended to have a retroactive effect, the Board has the duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new Diagnostic Codes, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSouza v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3- 2000 (2000) and 7- 2003 (2003). In this case, as will be explained in the remand below, the Veteran has not received notice of the revised criteria for rating IVDS (effective September 23, 2002) or the revised criteria for rating all injuries and disabilities of the spine (effective September 26, 2003). Furthermore, it does not appear that the RO has considered the revised criteria in adjudicating the Veteran's claim. The Veteran has, however, received notice of criteria in effect prior to September 23, 2002, and the RO has considered these criteria. Hence, to avoid any prejudice to the Veteran, in this decision, the Board will only address the initial rating assigned prior to September 23, 2002. Under DC 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the 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 or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Under former DC 5290, a rating of 10 percent was assigned for slight limitation of motion of the cervical spine, a 20 percent was assigned for a moderate limitation of motion, and a rating of 30 percent was assigned for a severe limitation of motion. The terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. [Parenthetically, the Board notes that, as a point of reference, standard or normal ranges of cervical spine motion are as follows: forward flexion, from 0 to 45 degrees; extension, from 0 to 45 degrees; right and left lateral flexion, each, from 0 to 45 degrees; and right and left lateral rotation, each, from 0 to 80 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. See 38 C.F.R. § 4.71a, Plate V (2009)]. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In this case, prior to September 23, 2002, the Veteran was assigned a 30 percent rating under former DC 5290, which is the maximum rating assignable under that diagnostic code. While a higher, 40 percent rating may be assigned for unfavorable ankylosis of the cervical spine under former DC 5287, for the period in question, the Veteran was able to accomplish some movement of his spine, and no ankylosis was diagnosed or shown. Moreover, in this case, the Board finds that, the 30 percent rating assigned properly compensates the Veteran for the extent of his functional loss due to pain and other factors set forth in §§ 4.40 and 4.45, and DeLuca. In reaching this determination, the Board notes that, although the medical evidence indicates the Veteran has limitation of motion of the cervical spine primarily due to pain, the medical evidence does not support a finding the Veteran's pain is so disabling as to effectively result in ankylosis of the cervical spine, which, as indicated above, is required for the next higher rating. Alternatively, the Board has considered whether a higher rating is available under the criteria for rating IVDS. Prior to September 23, 2002, under former Diagnostic Code 5293, a 10 percent rating was warranted for mild IVDS; a 20 percent rating was warranted for moderate IVDS with recurring attacks; a 40 percent rating was warranted for severe IVDS with recurring attacks and intermittent relief; and a maximum rating of 60 percent was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Considering the evidence in light of the above, the Board finds that, collectively, the medical evidence prior to September 23, 2002 does not reflect that the Veteran's cervical spine disability met the criteria for a higher, 40 percent rating under former DC 5293 for severe IVDS. Although the Veteran had radicular complaints, such as pain and numbness in his shoulders/arms and decreased grip strength, the medical evidence does not reflect symptoms characteristic of severe IVDS. In this regard, there was mild decreased sensation noted in June 1991 and no neurological deficits noted in July 1991. In October 1991, the Veteran described intermittent pain and numbness that was relieved with medication. The July 1994 VA examiner noted that deep tendon reflexes in the upper extremities were normal and sensitivity to pinprick was intact. In January 1996, although deep tendon reflexes were diminished, the Veteran had normal motor and sensory examinations and there was no difference in hand grip between the right and left. In May 1997, motor examination of the arms was 5/5 except for the ulnar side of the grip on the right side, which was only 4/5. In October 1997, he had 5/5 strength, normal tone, no atrophy, and range of motion of the cervical spine was normal. In March 1999, there were abnormal biceps, triceps, and supination jerks and sensory deficit was noted in the right hand. In May 1999, decreased grip strength was noted to be 4/5 in the right arm. In October 1999, muscle tests of the right upper extremity were 5/5 in all muscle groups. In June 2000, hand grip was slightly diminished, -5/5. In January 2002, there was some minimal weakness in the upper extremities, 4/5, and decreased sensation to pinprick. There were similar findings in April 2002. In September 2002, the Veteran's cervical spine stenosis was described as "moderate." The above-cited evidence reflects that, prior to September 23, 2002, the symptoms of the Veteran's cervical spine disability more closely approximated moderate, rather than severe, IVDS, warranting no more than the 30 percent rating assigned. Most neurological findings were at or near normal, and the findings noted were assessed as mild or moderate. Hence, for the period in question, the next, higher 40 percent rating under former DC 5293 is not assignable. No other potentially applicable criteria in effect prior to September 23, 2002, provides a basis for higher rating for the Veteran's cervical spine disability. In the absence of any evidence of residuals of fracture of cervical vertebra, DC 5285 is inapplicable. The disability also was not shown to involve any other factor(s) that warrant evaluating the disability under any other provision(s) of VA's rating schedule. The Board points out that it has certainly considered the Veteran's assertions as to his spine symptoms-which he is competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support an increased rating-a showing of ankylosis of the cervical spine, or the type of clinical findings needed establish severe IVDS-require medical findings which are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Hence, while the appellant's complaints have been considered, they are not considered more persuasive on these points than the objective medical findings which, as indicated above, do not support the claim for higher rating. For all the foregoing reasons, the Board finds that, for the period prior to September 23, 2002, there is no basis for staged rating of the cervical spine disability, pursuant to Fenderson (cited above); and that the claim for a higher initial rating for the disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating during the relevant time period, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER An initial rating in excess of 30 percent for DJD of the cervical spine, from December 20, 1989 through September 22, 2002, is denied. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action on the claim for a higher rating for DJD of the cervical spine, from September 23, 2002, is warranted, even though such action will, regrettably, further delay an appellate decision on the claim. As noted above, effective September 23, 2002, the criteria for rating IVDS were revised (see 67 Fed. Reg. 54,345-349 (August 22, 2002)), and, effective September 26, 2003, VA revised the criteria for rating all disabilities of the spine, including IVDS (see 68 Fed. Reg. 51,454-458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243)). In this case, it does not appear that the Veteran received notice of the revised criteria, and it is unclear whether the RO considered the revised criteria in its adjudication of the claim for the time period after the revisions became effective. Since September 23, 2002, the RO has only readjudicated the claim on one occasion - in a December 2009 SSOC. The December 2009 SSOC cites the criteria for rating limitation of motion of the cervical spine under DC 5290 (as in effect prior to September 26, 2003), but does not discuss the revised criteria as they pertain to IVDS or other disabilities of the spine. A summary of applicable laws and regulations with appropriate citations, and a discussion of how such laws and regulations affect the determination, must be included in the SOC or SSOC. 38 C.F.R. § 19.29. Hence, a remand is warranted to provide the Veteran with the appropriate notice of the revised criteria and to ensure that the RO has considered these criteria in adjudicating the claim. The Board also finds that, prior to adjudication of the claim remaining on appeal, additional RO action is warranted. The RO should obtain and associate with the claims file all outstanding VA treatment records. The claims file includes VA outpatient treatment records from the New York Harbor Healthcare System (HHS) dated through March 2003, and dated in May and September 2005. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain any outstanding records of treatment for DJD of the cervical spine from the New York HHS since March 2003, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, the RO should give the appellant another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the appellant should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should also provide notice as to the revised criteria for rating injuries and disabilities of the spine, to include IVDS (as in effect from September 23, 2002, and from September 26, 2003). After providing the appropriate notice, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal (to include arranging for the Veteran to undergo further examination, if warranted). The RO's adjudication of the claim must include consideration of all pertinent evidence since September 23, 2002, and legal authority (to include all revised criteria for evaluating the Veteran's cervical spine disability, noted above). The RO should also consider whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited above), is appropriate. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the New York HHS all outstanding records of evaluation and/or treatment for the Veteran's cervical spine disability, since March 2003. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for a higher rating for DJD of the cervical spine, from September 23, 2002. The RO should explain the type of evidence that is the Veteran's ultimate responsibility to submit. The RO's letter should also provide notice as to the revised criteria for rating injuries and disabilities of the spine, to include IVDS (as in effect from September 23, 2002, and from September 26, 2003). The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted (to include examination of the Veteran, if appropriate), the RO should adjudicate the claim for a higher rating for DJD of the cervical spine, from September 23, 2002, in light of all pertinent evidence (from September 23, 2002) and legal authority (in particular, all revised criteria for rating injuries and disabilities of the spine, to include IVDS, as in effect from September 23, 2002, and from September 26, 2003). The RO's adjudication of the claim should include consideration of whether staged rating, pursuant to Fenderson (cited above), is appropriate. 6. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered (to include all revised criteria for rating injuries and disabilities of the spine, to include IVDS, as in effect from September 23, 2002, and from September 26, 2003), as well as clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2009). ______________________________________________ JACQUELINE E, MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs