Citation Nr: 1045331 Decision Date: 12/06/10 Archive Date: 12/14/10 DOCKET NO. 07-19 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 10 percent prior to May 31, 2008, for degenerative disc disease, with intervertebral disc syndrome, of the lumbosacral spine. 3. Entitlement to a disability rating in excess of 20 percent commencing May 31, 2008, for degenerative disc disease, with intervertebral disc syndrome, of the lumbosacral spine. 4. Entitlement to a disability rating in excess of 10 percent prior to May 18, 2006, and in excess of 20 percent thereafter, for degenerative disc disease, with intervertebral disc syndrome and spondylosis of the cervical spine. 5. Entitlement to a disability rating in excess of 20 percent commencing May 18, 2006, for degenerative disc disease, with intervertebral disc syndrome and spondylosis of the cervical spine. 6. Entitlement to an effective date prior to April 23, 2004, for the award of service connection for bipolar disorder, major depression, and dysthymic disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 and March 2009 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). During the course of this appeal, the Veteran has been awarded increased ratings for his disabilities of the cervical and lumbosacral spine. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, these matters remain in appellate status. In August 2010, the Veteran testified before the Board. A transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. Competent evidence has been presented of a current diagnosis of PTSD based on an in-service stressor. 2. Prior to May 31, 2008, the Veteran's degenerative disc disease of the lumbosacral spine was characterized by forward flexion in excess of 60 degrees and cumulative range of motion in excess of 120 degrees. 3. Commencing May 31, 2008, the Veteran's degenerative disc disease of the lumbosacral spine was characterized by forward flexion in excess of 30 degrees but less than 60 degrees, with pain and weakness with motion. 4. Prior to May 18, 2006, the Veteran's degenerative disc disease of the cervical spine was characterized by forward flexion to 90 degrees, a combined range of motion in excess of 170 degrees, and a lack of neurological impairment of the extremities. 5. Commencing May 18, 2006, the Veteran's degenerative disc disease of the cervical spine is characterized by forward flexion to at least 20 degrees, and a lack of neurological impairment of the extremities. 6. A service connection claim for a psychiatric disability was received by VA on April 23, 2004, and represents the first such claim of record. CONCLUSIONS OF LAW 1. Posttraumatic stress disorder was incurred during military service, and service connection for this disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304(f) (2010). 2. The criteria for a disability rating in excess of 10 percent prior to May 31, 2008, for degenerative disc disease with intervertebral disc syndrome of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-43 (2010). 3. The criteria for a disability rating in excess of 20 percent commencing May 31, 2008, for degenerative disc disease with intervertebral disc syndrome of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-43 (2010). 4. The criteria for a disability rating in excess of 10 percent prior to May 18, 2006, for degenerative disc disease with spondylosis and intervertebral disc syndrome of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-43 (2010). 5. The criteria for a disability rating in excess of 20 percent commencing May 18, 2006, for degenerative disc disease with spondylosis and intervertebral disc syndrome of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-43 (2010). 6. The criteria for entitlement to an effective date prior to April 23, 2004, for the grant of service connection for bipolar disorder, major depression, and dysthymic disorder have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In June 2004, December 2005, March 2006, April 2006, July 2006, November 2007, June 2008, November 2009, and May 2010 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. Furthermore, as the claim for an earlier effective date is a downstream issue from that of service connection, he bears the burden of demonstrating prejudice resulting from defective VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Board notes that, in the present case, initial notice was issued prior to the May 2005 and March 2009 adverse determinations on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, that case was overruled by the U.S. Court of Appeals for the Federal Circuit, and is no longer binding on the Board. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. VA also attempted to obtain pertinent medical records from the Social Security Administration. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In a June 2008 statement, however, the Social Security Administration informed VA that such records were no longer available, and the Veteran was so informed of this fact. He has also been afforded VA medical examination on several occasions, most recently in December 2008. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. In August 2010, the Veteran was afforded the opportunity to testify before the Board. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. II. Service connection-PTSD The Veteran seeks service connection for PTSD. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 38 C.F.R. § 3.304(f), the regulation governing the establishment of service connection for PTSD, was modified effective July 13, 2010. See 68 Fed. Reg. 39843-52 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010) (corrected a clerical error in the Federal Register publication of July 13, 2010). This change is effective for all claims, such as the present claim, currently pending before VA. This change had the effect of liberalizing the evidentiary requirements for verification of a Veteran's claimed stressor. As revised, 38 C.F.R. § 3.304(f)(3) provides a Veteran's lay testimony alone may establish the incurrence of an in-service stressor if such stressor is consistent with the circumstances of the Veteran's service, involves a fear of hostile military or terrorist activity, and is found by a VA psychiatrist or psychologist to be sufficient to support a diagnosis of PTSD. Clear and convincing evidence to the contrary may, however, rebut such a presumption. Id. In the present case, the Veteran has alleged that he experienced many harrowing and life-threatening experiences while serving as a salvage diver during military service. At his August 2010 personal hearing, he stated that he felt afraid for his life on several occasions while on dives. In his written statements, he also alleged that several of his fellow divers were injured and/or killed while on missions with the Veteran. The Board notes that the Veteran's service records confirm he served as a scuba and salvage diver during his first several years in the service. Thus, the Board finds his claimed stressor is consistent with the places, times, and circumstances of the Veteran's military service. According to the U.S. Court of Appeals for Veterans Claims (Court), the Veteran need not submit evidence of personal participation in stressful events; he need only submit, or point the VA to, "independent evidence of the occurrence of a stressful event, [which] . . . implies his personal exposure." Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002). Next, the Veteran was diagnosed as having PTSD by a VA psychiatrist in May 2007, and in December 2008. The VA examiners based this diagnosis on the Veteran's traumatic experiences during military service. Additional VA outpatient treatment records also confirm a current diagnosis of PTSD. Therefore, in light of the record, the benefit of the doubt is afforded the Veteran, and service connection for PTSD is hereby granted. See 38 U.S.C.A. § 5107(b). III. Increased rating-Spinal disabilities The Veteran seeks increased initial ratings for his disabilities of the lumbosacral and cervical spine. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, however, the assignment of initial ratings is under consideration, the level of disability in all periods since the effective date of the grant of service connection must be taken into account. Fenderson v. West, 12 Vet. App. 119 (1998). 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. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides the following: 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-42. If the facts of a claim warrant, spinal disabilities may also be evaluated based on intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Using the first criteria, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warranted a 60 percent evaluation. With incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent evaluation is warranted. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. a. Lumbosacral spine As is noted above, the Veteran has been awarded a 10 percent disability rating prior to May 31, 2008, for his lumbosacral spine disability, and 20 percent thereafter. These time periods will be considered in turn. Upon receipt of his claim, the Veteran was afforded a VA orthopedic examination in February 2005. He reported a history of recurrent low back pain beginning in service, for which he now used medication. He denied requiring a cane or back brace, however. Physical evaluation of the low back indicated it was normal in appearance, without signs of obvious trauma. Tenderness was present with palpation along the midline and along the paraspinal muscles. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. Pain was reported with range of motion, but he was without weakness, lack of endurance, incoordination, or fatigability. Sensation, reflexes, and motor strength of the lower extremities were within normal limits. X-rays of the lumbosacral spine confirmed a prior fracture of the L3 disc body, along with degenerative changes of the lumbosacral spine. The Veteran was next afforded a VA orthopedic examination in May 2006. He reported pain, weakness, stiffness, and limitation of motion of the lumbosacral spine. He used medication for his pain, and reported his pain incapacitated him up to 30 times per month, with such episodes lasting up to 2 days. On physical examination, the Veteran's gait and posture were within normal limits, and he did not require an assistance device for ambulation. Physical examination of the lumbosacral spine was negative for radiating pain with movement, muscle spasm, tenderness, or ankylosis. Straight leg raising was positive on the left. Range of motion testing indicated forward flexion to 70 degrees, extension to 5 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. No additional limitation of motion was noted to result due to such factors as incoordination, pain, pain on use, fatigue, weakness, or lack of endurance. No signs of intervertebral disc syndrome were noted. Motor function and sensory and neurological findings of the lower extremities were essentially within normal limits. Degenerative disc disease of the lumbosacral spine was confirmed. The Veteran underwent a laminectomy and discectomy of the lumbosacral spine at a VA medical center in June 2005. His surgery was without complications, and he was discharged to be followed on an outpatient basis. The Board notes that he was granted a temporary total rating for convalescence purposes, effective from June 8, 2005, to December 31, 2005, following his surgery. The Veteran was most recently afforded a VA orthopedic examination in December 2008. He reported pain, weakness, stiffness, and limitation of motion of the lumbosacral spine. He denied loss of bladder or bowel control, however. He used medication for his pain, but denied incapacitating episodes. On physical examination, the Veteran's posture was within normal limits, his gait was antalgic, and he did not require an assistance device for ambulation. A nontender surgical scar measuring 7cm by .5cm was present along the midline of the low back. Physical examination of the lumbosacral spine was negative for radiating pain with movement, muscle spasm, tenderness, or ankylosis. Straight leg raising was positive on the left. Range of motion testing indicated forward flexion to 45 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. No additional limitation of motion was noted to result due to such factors as incoordination, pain, pain on use, fatigue, weakness, or lack of endurance. Reflexes were 2+ in the lower extremities. X-rays demonstrated degenerative arthritis, an old compression fracture, and spondylosis. Degenerative disc disease of the lumbosacral spine was confirmed. The Veteran has also received VA outpatient treatment during the pendency of this appeal, and he has consistently reported pain, weakness, and limitation of motion of the low back. A January 2008 MRI of the Veteran's lumbosacral spine confirmed a compression fracture at L3, along with bulging discs and degenerative changes at several levels of the lumbosacral spine. In a January 2009 letter, the Veteran's treating VA physician stated the Veteran had severe pain secondary to spinal stenosis of the lumbosacral spine. At his August 2010 personal hearing before the Board, he stated his back pain was both severe and chronic, interfering with his sleep and his daily activities. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of a disability rating in excess of 10 percent prior to May 31, 2008, for the Veteran's service-connected lumbosacral spine disability. According to the February 2005 and May 2006 VA examination reports, the Veteran's forward flexion of the thoracolumbar spine has not been less than 60 degrees, nor has the combined range of motion of the thoracolumbar spine been reduced to 120 degrees or less for the time period in question. Furthermore, the Veteran has not demonstrated muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis prior to May 31, 2008. According to the various examination reports of record, the Veteran's gait has been within normal limits, and he has not exhibited abnormal spinal contour. He has not required a cane or other assistance device to aid with ambulation. The Veteran has also not demonstrated additional limitation of motion based on such factors as pain, pain on use, weakness, fatigability, or incoordination with repeated use. See DeLuca, 8 Vet. App. at 202. Thus, an increased rating in excess of 10 percent prior to May 31, 2008, is not warranted. The Board is aware that in June 2005, the Veteran underwent a laminectomy and discectomy of the lumbosacral spine at a VA medical center. He was subsequently awarded a temporary total rating under 38 C.F.R. § 4.30, effective from June 8, 2005, to December 31, 2005, for convalescence purposes. As he has not objected to the effective dates of this award, that issue is not before the Board. Considering next entitlement to a disability rating in excess of 20 percent after May 31, 2008, the December 2008 VA examination report and other pertinent evidence of record does not reflect forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, as would warrant the next higher rating of 40 percent. Additionally, though the Veteran has some weakness due to such factors as pain, pain on use, fatigability, and incoordination with repetitive motion, these do not result in additional limitation of motion, as would support a higher rating. See DeLuca, 8 Vet. App. at 202. Overall, the preponderance of the evidence is against a disability rating in excess of 20 percent after May 31, 2008, for his lumbosacral spine disability. Consideration of the Veteran's disability under the criteria for intervertebral disc syndrome also would not result in a higher rating, as he does not experience flare-ups or incapacitating episodes which require 2 or more weeks of bed rest for the period prior to May 31, 2008, or, for the period thereafter, 4 weeks or more of bed rest prescribed by a physician within a 12 month period. The Board notes that on the occasion of his June 2005 VA examination, he reported incapacitating episodes occurring on an almost daily basis. Review of the VA outpatient treatment records does not, however, indicate bed rest was prescribed on such a frequent basis by a physician. Furthermore, the Veteran has not displayed any significant impairment of the motor strength, sensation, or neurological functioning of the lower extremities. Thus, an increased rating based on intervertebral disc syndrome is not warranted. Additionally, as the Veteran has remained at this level of impairment for the entire pendency of the appeal, a staged rating in excess of that already awarded by VA is not warranted at the present time. See Fenderson, 12 Vet. App. at 119. Entitlement to an extraschedular rating is also not found to be warranted at this time, as will be discussed in greater detail below. In reviewing the Veteran's claim, the Board is also aware that separate ratings may be awarded for distinct symptomatology or manifestations of the service-connected disability at issue. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition). In the present case, the Veteran has a surgical scar of the low back following his 2005 surgery; however, his scar is well-healed and asymptomatic according to the December 2008 VA examination report. Based on these findings, a separate 10 percent rating is not warranted at present under the criteria for skin disabilities. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. In conclusion, the preponderance of the evidence is against a disability rating in excess of 10 percent prior to May 31, 2008, and in excess of 20 percent thereafter for the Veteran's degenerative disc disease of the lumbosacral spine. As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). b. Cervical spine The Veteran also seeks an increased rating for his degenerative disc disease of the cervical spine. The general criteria for the award of increased ratings has already been noted above. As also noted above, the Veteran has been granted a disability rating of 10 percent prior to May 18, 2006, and of 20 percent thereafter. These time periods will be considered in turn. Upon receipt of his claim, the Veteran was afforded a VA orthopedic examination in February 2005. He reported a history of recurrent neck pain beginning in service, for which he now used medication. He denied, however, requiring a cane or back brace. Physical evaluation indicated his neck was normal in appearance, without signs of obvious trauma. Tenderness was present with palpation along the midline and extending toward the shoulders. Range of motion testing revealed forward flexion to 90 degrees, extension to 40 degrees, lateral flexion to 60 degrees bilaterally, and lateral rotation to 80 degrees bilaterally. Pain was reported with range of motion, but he was without weakness, lack of endurance, incoordination, or fatigability. Sensation, reflexes, and motor strength of the upper extremities were within normal limits. X-rays of the neck reflected mild degenerative changes. The Veteran was next afforded a VA orthopedic examination in May 2006. He reported pain, weakness, stiffness, and limitation of motion of the cervical spine. He used medication for his neck pain, and reported experienced incapacitating episodes up to 2 times per month, lasting up to 2 days. On physical examination, the Veteran's gait and posture were within normal limits, and he did not require an assistance device for ambulation. Physical examination of the cervical spine indicated radiating pain with movement, but no muscle spasm, tenderness, or ankylosis. Range of motion testing indicated forward flexion to 20 degrees, extension to 5 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 40 degrees bilaterally. No additional limitation of motion was noted to result due to such factors as incoordination, pain, pain on use, fatigue, weakness, or lack of endurance. No signs of intervertebral disc syndrome were noted. Motor function and sensory and neurological findings of the upper extremities were within normal limits. A chronic cervical strain was confirmed. The Veteran was most recently afforded a VA orthopedic examination in December 2008. He reported pain, weakness, stiffness, and limitation of motion of the cervical spine. He used medication for his neck pain, but denied incapacitating episodes. On physical examination, the Veteran's posture was within normal limits, his gait was antalgic, and he did not require an assistance device for ambulation. Physical examination of the cervical spine indicated radiating pain with movement, but no muscle spasm, tenderness, or ankylosis. Range of motion testing indicated forward flexion to 30 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 40 degrees bilaterally. No additional limitation of motion was noted to result due to such factors as incoordination, pain, pain on use, fatigue, weakness, or lack of endurance. Reflexes were 2+ in the upper extremities. X-rays demonstrated degenerative arthritis, spondylosis, and neuroforaminal narrowing. A chronic cervical strain was confirmed. The Veteran has also received VA outpatient treatment for his cervical spine during the pendency of this appeal. He has consistently reported chronic pain and weakness of the neck. An April 2005 VA MRI report confirmed neural foramina narrowing at multiple levels of the cervical spine. In a January 2009 letter, the Veteran's treating VA physician stated the Veteran had severe pain secondary to spinal stenosis of the cervical spine. At his August 2010 personal hearing before the Board, he stated his cervical spine pain was both severe and chronic, interfering with his sleep and his daily activities. After considering the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent prior to May 18, 2006. According to the February 2005 VA examination report, the Veteran has forward flexion to 90 degrees, well in excess of the 30 degrees or less of forward flexion required for a 20 percent rating. He also does not have combined range of motion of the cervical spine limited to 170 degrees or less, as his combined range of motion in February 2005 was in excess of 170 degrees. Additionally, the outpatient treatment records for that time period do not reflect a greater degree of impairment than that demonstrated in February 2005. Overall, the preponderance of the evidence is against a disability rating in excess of 10 percent prior to May 18, 2006. Next, the preponderance of the evidence is against a disability rating in excess of 20 percent commencing May 18, 2006, for his degenerative disc disease of the cervical spine. As noted above, the next higher rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the cervical spine. Neither degree of impairment has been demonstrated in the present case. According to the 2006 and 2008 VA examination reports, the Veteran's forward flexion of the cervical spine has been to at least 20 degrees during the pendency of this appeal, and was most recently measured to 30 degrees in December 2008. Additionally, while the Veteran has some weakness due to such factors as pain, pain on use, fatigability, and incoordination with repetitive motion, these do not result in additional limitation of motion, as would support a higher rating. See DeLuca, 8 Vet. App. at 202. Consideration of the Veteran's disability under the criteria for intervertebral disc syndrome also would not result in a higher rating, as he does not experience flare-ups or incapacitating episodes which require 4 or more weeks of bed rest prescribed by a physician within a 12 month period. The Board notes that on the occasion of his June 2005 VA examination, he reported incapacitating episodes occurring on an almost daily basis. Review of the VA outpatient treatment records does not, however, indicate bed rest was prescribed by a physician on such a frequent basis. Furthermore, the Veteran has not displayed any significant impairment of the motor strength, sensation, or neurological functioning of the upper or lower extremities. Thus, an increased rating based on intervertebral disc syndrome is not warranted for the time periods in question. Additionally, as the Veteran has remained at this level of impairment for the entire pendency of the appeal, a staged rating is not warranted at the present time. See Fenderson, 12 Vet. App. at 119. Entitlement to an extraschedular rating is also not found to be warranted at this time, as will be discussed in greater detail below. In conclusion, the preponderance of the evidence is against a disability rating in excess of 10 percent prior to May 18, 2006, and in excess of 20 percent thereafter for the Veteran's degenerative disc disease of the cervical spine. As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). c. Extraschedular consideration Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the spinal disabilities at issue. The Board observes that although the Veteran has not been employed for many years, this fact is due to a variety of medical disabilities, and not his spinal disabilities alone. He has not required frequent or extensive hospitalization for his service-connected spinal disabilities during the pendency of this appeal. Additionally, no examiner has stated the Veteran's service-connected spinal disabilities alone are the cause of any marked or total interference with employment. In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability. See 38 U.S.C.A. § 1155 (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). Finally, the Board observes that the Veteran has already been awarded a 100 percent combined schedular rating, effective April 23, 2004, thus rendering essentially moot any question as to entitlement to a total disability rating based on individual unemployability due to service-connected disability after that date. For these reasons, referral for extraschedular consideration is not warranted. IV. Earlier effective date The Veteran seeks an effective date prior to April 23, 2004, for the grant of service connection for bipolar disorder, major depression, and dysthymic disorder. Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The U.S. Court of Appeals for the Federal Circuit has elaborated that VA "has a duty to fully and sympathetically develop the veteran's claim to its optimum in order to determine if an informal claim had been raised. With respect to all pro se pleadings, VA [must] give a sympathetic reading to the veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations." Szemraj v. Principi, 357 F.3d 1370 (2004). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Id. at 200. VA, however, is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356- 57 (1995). In the present case, the Veteran has been awarded, within a March 2009 rating decision, an effective date of April 23, 2004, for the award of service connection for a psychiatric disability. On this date the RO received an informal claim for a psychiatric disability, claimed as PTSD, depression, and/or insomnia. Review of the record further indicates that this is the first such claim of record. While the Veteran did file a service connection claim shortly after service separation for multiple disabilities, which was received by VA on September 30, 1992, he did not report a psychiatric disability at that time. In support of his claim, the Veteran has argued, and submitted evidence to support, that he had onset of a psychiatric disability during military service and immediately following service separation. He submitted a May 2010 letter from M.C.N., M.D., a former military physician who stated he treated the Veteran for depression and related psychiatric symptoms as early as 1991, while the Veteran was still on active duty. In the absence of evidence to the contrary, the Board accepts this statement as credible. Nevertheless, this statement does not serve as a sufficient basis to support the award of an earlier effective date. Unless otherwise authorized by statute, an effective date for entitlement to compensation cannot be retroactive for more than one year from the date of application. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997); see 38 C.F.R. § 3.400. The Board further notes that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. The provisions of 38 C.F.R. § 3.157 only apply, however, once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). Here, the Veteran's April 23, 2004, claim was not preceded by any adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that a claim, be it formal or informal, of entitlement to service connection for a psychiatric disability was filed earlier than that date, and the report of psychiatric treatment during and immediately following service may not be accepted as an informal claim. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). The Board also notes that VA was not aware at that time immediately following service that the Veteran was receiving treatment for a psychiatric disability, as such treatment was only recently brought to VA's notice, after receipt of the April 2004 claim. The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon, 12 Vet. App. at 34-35. Such intent is not present in this case until receipt of the April 23, 2004 informal claim, and thus, the assignment by the RO of that date as an effective date for the award of service connection for a psychiatric disability was proper. Finally, in his August 2010 hearing testimony and written statements, the Veteran has stated that because the Social Security Administration (SSA) found in 1997 that he was disabled in part due to a psychiatric disability, an effective date back to the date of that determination is warranted. The Board is cognizant that regulations such as 38 C.F.R. § 3.153 allow for certain prescribed government forms to serve as joint applications for both SSA and VA death benefits; however, no such regulation establishes that a claim for Social Security Disability benefits will also constitute a joint claim for VA service connection benefits. Additionally, the Veteran did not bring his application for SSA benefits to the attention of VA until well after 2004; thus, this application does not serve as a prior VA compensation claim. In conclusion, an effective date prior to April 23, 2004, for the Veteran's award of service connection for bipolar disorder, major depression, and dysthymic disorder is not warranted. Although the Veteran has alleged he was diagnosed with a psychiatric disability over a year prior to the effective date granted, he did not file a service connection claim at that time. As a preponderance of the evidence is against the award of an earlier effective date, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for PTSD is granted, subject to the laws and regulations regarding payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent prior to May 31, 2008, for degenerative disc disease with intervertebral disc syndrome of the lumbosacral spine is denied. Entitlement to a disability rating in excess of 20 percent commencing May 31, 2008, for degenerative disc disease with intervertebral disc syndrome of the lumbosacral spine is denied. Entitlement to a disability rating in excess of 10 percent prior to May 18, 2006, for degenerative disc disease with spondylosis and intervertebral disc syndrome of the cervical spine is denied. Entitlement to a disability rating in excess of 20 percent commencing May 18, 2006, for degenerative disc disease with spondylosis and intervertebral disc syndrome of the cervical spine is denied. Entitlement to an effective date prior to April 23, 2004, for the award of service connection for bipolar disorder, major depression, and dysthymic disorder is denied. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs