Citation Nr: 1241069 Decision Date: 12/03/12 Archive Date: 12/12/12 DOCKET NO. 09-31 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for herniated cervical disk, C6-7, status post cervical fusion surgery. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1999 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The issue of entitlement to a separate rating for radiculopathy of the left arm associated with the Veteran's service-connected cervical spine disorder was raised by the record in 2010. This issue has not yet been developed for appellate review and is therefore referred to the RO for appropriate disposition. FINDING OF FACT The Veteran's herniated cervical disk, C6-7, status post cervical fusion surgery, was manifested by chronic pain; weekly flare-ups; decreased motion; no ankylosis, favorable or unfavorable; flexion between 35 to 45 degrees; extension between 35 to 45 degrees; left lateral rotation to 65 degrees; right lateral rotation to 80 degrees; left lateral flexion to 45 degrees; and right lateral flexion to 45 degrees, with pain throughout all ranges of motion. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for herniated cervical disk, C6-7, status post cervical fusion surgery, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5241 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's September 2008 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the RO's December 2008 letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating. This letter also informed him of the general requirements to obtain a higher rating and notified him of the need to submit evidence of how such worsening affected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini, 18 Vet. App. at 120. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, pursuant to his claim, the Veteran underwent VA examinations in September 2008 and November 2010 in order to ascertain the severity of his service-connected herniated cervical disk, C6-7, status post cervical fusion surgery. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiners reviewed the Veteran's claims file, took into account the Veteran's statements, treatment records, and lay statements of record, and performed thorough evaluations, all of which allowed for fully-informed evaluations of the claimed disability. Id. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473; see also Shinseki v. Sanders, 129 S. Ct. 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) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Historically, the Veteran served on active duty from June 1999 to July 2005. In July 2008, the Veteran submitted a claim of entitlement to an evaluation in excess of 10 percent for his service-connected herniated cervical disk, C6-7, status post cervical fusion surgery. Pursuant to this claim, the Veteran was scheduled for and underwent a VA examination in September 2008. In October 2008, a 20 percent evaluation was assigned to the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, with an effective date of July 31, 2008. The Veteran perfected an appeal of this decision seeking an increased rating. During the pendency of this appeal, the Veteran was also afforded a VA examination in November 2010 to ascertain the severity of his service-connected herniated cervical disk, C6-7, status post cervical fusion surgery. The Veteran's claim was then re-adjudicated in a January 2011 supplemental statement of the case before it was certified to the Board for appellate review. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. This involves a factual determination of the current severity of the disability. Staged ratings are appropriate whenever the factual findings show distinct periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2012). Therefore, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The rating for the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5241, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). With or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the General Rating Formula provides for a 100 percent evaluation for unfavorable ankylosis of the entire spine; a 50 percent evaluation for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation for unfavorable ankylosis of the entire cervical spine; a 30 percent evaluation for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine; a 20 percent evaluation for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and a 10 percent evaluation for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a, General Rating Formula. 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. 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V. Intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Code 5243 (2012). According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating requires evidence of incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). Pursuant to his claim, the Veteran underwent a VA examination in September 2008. The Veteran reported chronic, sharp pain, with flare-ups occurring with overhead activities and side flexion activities, to include driving. The examiner reported the Veteran had radicular pain in the right upper extremity with paresthesias associated with his cervical herniated disk. The Veteran reported missing approximately 14 days of work due to pain, having a limited driving tolerance, and being unable to participate in recreational activities. On physical examination, his spine was symmetrical, his posture was normal, and his gait was guarded. Cervical forward flexion was to 35 degrees; extension was to 35 degrees; and bilateral flexion was to 20 degrees. Right and left rotation could not be attempted due to intense pain, and pain was demonstrated with all levels of range of motion. There was no issue of limitations with repetition and no change in the range of motion. There were no paracervical spasms. There was posterior tenderness, an anterior scar, and a transverse scar. The Veteran had no postural abnormalities, to include ankylosis, or abnormality of musculature. On neurological examination, sensation was diminished in the C6-7 distribution in the right upper extremity with no muscle wasting. The examiner found the Veteran had no incapacitating episodes of acute signs and symptoms during the past 12-month period that required prescribed bed rest by a physician. The examiner diagnosed moderately severe cervical spine strain with residuals of anterior cervical fusion at C6-7 with discectomy and fixation with plate and screws. The examiner also found that there was no additional limitation of joint function due to pain, fatigue, weakness, lack of endurance, or incoordination. On a February 2010 VA treatment record, a VA physician reported the Veteran had a history of axial lower neck pain progressing to weakness and muscle spasms in the right upper extremity associated with pain involving the entire right upper extremity and numbness in the right hand and all fingers. The Veteran reported post-surgical worsening of his neck pain. The VA physician found the location of the pain was in the diffuse posterior neck region and radiated on the right shoulder more than the left shoulder. The Veteran reported that the pain affected his instrumental activities of daily living, to include house chores and yard work; enjoyment of his life; work; leisure activities; concentration; decision-making; sex drive; energy level; appetite; familial relationships; emotions; and sleep. The assessment included diffuse mechanical cervical spinal pain with myofascial component and status post C6-7 anterior cervical fusion. In November 2010, the Veteran underwent an additional VA examination pursuant to his claim. The Veteran reported that his neck pain had progressively worsened since its onset in service. The Veteran presented with no history of spine trauma or spine neoplasm. The Veteran reported severe cervical flare-ups that occurred weekly and lasted for hours. The extent of additional limitation of motion or other functional impairment was recorded as paralysis with no change in motion. The Veteran reported a history of numbness and paresthesias but denied leg or foot weakness, falls, and unsteadiness. The Veteran denied fatigue, but he reported decreased motion, stiffness, weakness, spasm, and spinal pain. The Veteran described the cervical pain as spontaneous, sharp, severe, constant, and daily, with pain radiating into the middle of the back and the arms, bilaterally. The VA examiner recorded no incapacitating episodes of spine disease. On physical examination, the Veteran's posture, head position, and gait were normal and symmetrical. There was no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, cervical spine ankylosis, or thoracolumbar spine ankylosis. With respect to objective abnormalities of cervical sacrospinalis, there was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Objective abnormalities of thoracolumbar sacrospinalis were likewise negative. Cervical forward flexion was to 45 degrees; extension was to 45 degrees; left lateral flexion was to 45 degrees; right lateral flexion was to 45 degrees; left lateral rotation was to 65 degrees; and right lateral rotation was to 80 degrees. There was objective evidence of pain on active range of motion but no objective evidence of pain following repetitive motion and no additional limitation after three repetitions of active range of motion. The Veteran reported that he was employed fulltime as an aircraft structural lead and had lost less than one week of work during the past 12-month period due to medical appointments. The examiner diagnosed herniated cervical disk, C6-C7, remote, status post cervical fusion, C6-C7, with mild residuals. The effect on usual occupation and occupational activities included assignment of different duties and decreased manual dexterity. The Veteran's disability had minimal effects on chores, exercise, and recreation. To warrant the assignment of a 30 percent disability rating, the evidence must show forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. In this case, the September 2008 and November 2010 VA examinations show useful motion of the cervical spine with forward flexion to 35 degrees. As such, the Board finds the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, does not warrant a rating in excess of 20 percent under the General Rating Formula. 38 C.F.R. § 4.71a. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. As stated above, an incapacitating episode is defined as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Here, the Board notes that the Veteran reported in September 2008 that he had missed approximately 14 days of work in the past 12-month period due to pain. However, there is no evidence in the claims file that these episodes required prescribed bed rest and treatment by a physician. Furthermore, the Veteran has not asserted that he was prescribed bed rest by a physician for any period during the pendency of the appeal. As such, the Board finds that rating the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. In making this determination, the Board has also considered whether there was any additional functional loss not contemplated in the 20 percent evaluation for the Veteran's symptoms. See 38 C.F.R. §§ 4.40, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. at 202, 206 (1995). Functional loss of use as the result of a disability of the musculoskeletal system may be due to the absence of bones, muscles, or joints, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. 38 C.F.R. § 4.40. During the September 2008 VA examination, range of motion testing demonstrated that although the Veteran was able to flex forward to 35 degrees, all levels of range of motion had extremity area pain. However, in response to the question as to whether there was additional limitation of motion on repetitive use of the joint(s) due to pain, fatigue, weakness, or lack of endurance, the examiner reported that there was no issue of limitations with repetition and no change in the range of motion. Mitchell, 25 Vet. App. at 37-44. Further, there was no evidence that pain prevented the Veteran from any other normal movement of his back and, thus, his functional capacity was not additionally limited by pain. In November 2010, the Veteran was able to flex forward to 45 degrees, and there was objective evidence of pain on active range of motion. However, the examiner found there was no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion. The VA examiner noted that the Veteran had decreased manual dexterity as the result of pain, but there was no objective evidence of spasm, atrophy, guarding, tenderness, or weakness. Furthermore, although additional limitation of motion or other functional impairment during the Veteran's reported weekly flare-ups included paralysis, for which the Veteran is separately service-connected, there was no change in motion. As a result, the Board finds there is no additional functional limitation not contemplated by the already assigned 20 percent rating for the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery. Mitchell v. Shinseki, 25 Vet. App. 32, 37-44 (2011) (holding that pain itself is not functional loss, but can cause functional loss to the extent that it affects the normal working movements of the body such as excursion, strength, speed, coordination, or endurance). On his August 2009 VA Form 9, the Veteran asserted that his range of motion was less than previously demonstrated on VA examination and that his condition had worsened, particularly during flare-ups. As a result, the Veteran was afforded an additional VA examination in November 2010 to medically ascertain the severity of his service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, to include the range of motion. This examination did not demonstrate that the Veteran's service-connected disability had manifested to a degree warranting an evaluation in excess of 20 percent. Additionally, the Veteran has asserted that as a result of his service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, he has paralysis of the right arm and migraine headaches. In this regard, VA is required to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In September 2008, the examiner determined the symptoms associated with the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, were radicular pain into the right upper extremity with paresthesias. In November 2010, the examiner reported there was no history of urinary incontinence, no urinary urgency, no urinary retention requiring catheterization, no urinary frequency, no nocturia, no fecal incontinence, no obstipation, no leg or foot weakness, no falls, no unsteadiness. Although there was a history of erectile dysfunction, it was attributed to medication. The Veteran's history was positive for numbness and paresthesias. Here, a separate evaluation of 10 percent is in effect for paresthesias of right upper extremity. 38 C.F.R. § 4.71a, Note (1); see also, 38 C.F.R. § 4.124a, Diagnostic Code 8515. Furthermore, service connection is in effect for muscle tension headaches, with an evaluation of 50 percent assigned thereto. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As a result, the Board finds the objective neurologic abnormalities of paresthesias of right upper extremity and migraine headaches associated with the Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, are already considered in the Veteran's current disability ratings. Also, there is no evidence of record that would warrant a rating in excess of those assigned at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002); see also Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected disability, the evidence shows no distinct periods during the pendency of the appeal during which this disability has varied to such an extent that a rating greater or less than the current evaluation would be warranted. Cf. 38 C.F.R. § 3.344 (2012) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). The Board recognizes the Veteran's statements attesting to his constant pain and the effects on his quality of daily life. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau, 492 F.3d at 1377; Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Furthermore, the Board finds the Veteran's statements are consistent and credible evidence pertaining to his symptomatology. However, these statements must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including the VA examination reports, demonstrate consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. The evidence does not demonstrate favorable ankylosis of the entire cervical spine, and cervical forward flexion was between 35 to 45 degrees. The Veteran continues to work fulltime, there is no evidence in the record of incapacitating episodes with prescribed bed rest and treatment by a physician, and the Board finds that functional loss does not warrant a higher disability rating. Thus, when considering the overall evidence of record, including the Veteran's statements and medical evidence, the Veteran's disability does not warrant an evaluation in excess of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5241. Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria under the Rating Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the 20 percent rating inadequate. The Veteran's service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, is evaluated as a musculoskeletal disability, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id.; see also 38 C.F.R. § 4.71a, Diagnostic Code 5241. At its most severe, the Veteran's herniated cervical disk, C6-7, status post cervical fusion surgery, resulted in cervical forward flexion to 35 degrees and no favorable ankylosis. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptomatology contemplates the disability picture represented by a 20 percent disability rating. A rating in excess of that is provided for cervical forward flexion to 15 degrees or less, or favorable ankylosis of the entire cervical spine, but the medical evidence does not demonstrate that these manifestations were present in this case. The criteria for a 20 percent rating reasonably describe the Veteran's disability level and symptomatology and therefore, a schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.71a, Diagnostic Code 5241; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against an evaluation in excess of that already assigned throughout the pendency of this appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 20 percent for service-connected herniated cervical disk, C6-7, status post cervical fusion surgery, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs