Citation Nr: 1300072 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 08-03 465A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased evaluation for cervical spine degenerative disc disease, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for lumbar spine degenerative disc disease, currently evaluated as 60 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from May 1976 to June 1978 and from August 1981 to January 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of this appeal, the claims file was transferred to the Roanoke, Virginia RO. The Board remanded the case for further development in January 2010. The case has since been returned for appellate review. The issue of entitlement to service connection for a gastrointestinal disorder to include as secondary to medication taken for the service-connected cervical and lumbar spine disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected cervical spine degenerative disc disease is manifested by flexion in excess of 15 degrees and no ankylosis, associated objective neurological abnormalities, or additional functional limitations to a compensable degree. 2. The Veteran's service-connected lumbar spine degenerative disc disease is manifested by range of motion that does not equal ankylosis and no additional functional limitations to a compensable degree. 3. Mild right lower extremity radiculopathy is associated with the Veteran's service-connected lumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for cervical spine degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for an evaluation in excess of 60 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for a separate 10 percent evaluation, but no more, for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant 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 claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A September 2006 letter that provided the required content of notice was sent to the Veteran prior to initial adjudication of his increased evaluations claims. In addition, a letter was sent in August 2008 that provided the applicable diagnostic codes used to evaluate the Veteran's service-connected disabilities. These letters were also followed by a readjudication of the claim in a statement of the case (SOC) and multiple supplemental statements of the case (SSOC). Prickett, 20 Vet. App. at 376. Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, Social Security Administration (SSA) records, and identified private medical records have been obtained. VA provided the Veteran medical examinations in November 2008 and in August 2010. The examinations are adequate because they contain a history obtained from the Veteran and thorough spine examinations relevant to the applicable rating criteria, including orthopedic and neurological examinations. Although the 2008 VA examiner did not properly comment on the presence of functional limitations, this defect was cured by the 2010 VA examination. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. This appeal was remanded by the Board in January 2010. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). That remand requested that VA contact the Veteran for information regarding any private or VA treatment and then obtain any such records. This was done in a March 2010 letter; the Veteran responded that same month that all of her treatment was at VA. Current VA records were obtained. The remand also requested that VA obtain SSA records. The records were obtained and associated with the claims file in 2011. Finally, the remand requested that, after any additional records were obtained, VA provide the Veteran with a lumbar and cervical spine orthopedic and neurological examination. Such an examination was provided in August 2010. Although that examination was provided before the SSA and VA medical records were associated with the claims file, the Board finds that there has been substantial compliance with the request because SSA records were from a time period that is not relevant to the appeal and records already associated with the claims file enabled the examiner to consider the history of the disabilities. 38 C.F.R. § 4.2. Similarly, the current VA medical records reflect symptoms substantially similar as those indicated at the examination. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The 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 any 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Furthermore, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Schedular evaluation for cervical spine degenerative disc disease The Veteran's cervical spine degenerative disc disease is assigned a 20 percent evaluation under Diagnostic Code 5243 for intervertebral disc disease, which contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the rating criteria for intervertebral disc syndrome, a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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, General Rating Formula, Note (1). Here, the Veteran's 20 percent evaluation is protected as it has been in effect for more than 20 years. 38 C.F.R. § 3.951 (2012). A review of VA medical records dated since in 2006 does not indicate any physician-prescribed bed rest of at least four weeks. Accordingly, an increased evaluation is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has also considered whether the Veteran is entitled to an increased evaluation under other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine; a 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine; and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Unfavorable ankylosis is a condition in which the entire cervical, thoracolumbar, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more additional listed limitations. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula Note (5), Plate V (2012). At a November 2008 VA spine examination, the Veteran had cervical spine flexion to 30 degrees, extension to 20 degrees, right and left lateral flexion to 15 to 20 degrees, and right and left rotation to 30 degrees. At an August 2010 VA spine examination, there was cervical spine flexion to 45 degrees, extension to 30 degrees, bilateral lateral flexion to 35 degrees, left lateral rotation to 45 degrees, and right lateral rotation to 50 degrees. Thus, forward flexion was not limited to 15 degrees or less, and there was some range of motion in all planes; therefore, the evidence did not demonstrate favorable or unfavorable ankylosis. Accordingly, under the General Rating Formula, an increased evaluation is not warranted. The Board has also considered the assignment of a separate evaluation for any associated objective neurological abnormalities under appropriate diagnostic codes. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). A review of VA medical records indicates that in March 2008 the Veteran reported having cervical spine pain radiation. At the November 2008 and August 2010 VA examinations, however, the Veteran denied having radiation of cervical spine pain. Throughout the relevant time period, the Veteran had normal reflexes of the bilateral upper extremities. In VA medical records dated in December 2006, January 2007, March 2008, and April 2009, the right upper extremity had some decreased sensation, but his left upper extremity sensation was intact. In a March 2010 VA record, there was also normal sensation of the bilateral upper extremities. At the August 2010 VA examination, there was normal sensation of the bilateral upper extremities. Although the examiner diagnosed a neurological disorder related to the lumbar spine, no diagnosis was made regarding neurological manifestations of the cervical spine degenerative disc disease. Thus, on balance, the objective evidence does not demonstrate associated neurological abnormalities. Accordingly, a separate evaluation on this basis is not warranted. Finally, the Board has considered whether there is any additional functional loss not contemplated in the current 20 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Factors involved in evaluating and rating disabilities of the joints include: weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2012). With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes, such as more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Nonetheless, a higher rating is not assignable under a range of motion diagnostic code where pain does not cause a compensable functional loss. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In VA medical records dated from 2005 to 2010, the Veteran has reported chronic having neck pain. In August 2005, August 2006, January 2007, March 2008, April 2009, and March 2010 VA medical records, there was motor strength of 5/5 of the upper extremities and normal reflexes of the bilateral upper extremities. A November 2008 VA examination was conducted during which the Veteran reported that she could function, perform her daily activities, and that employment was not prevented. She reported taking medication and using a soft collar for her neck while sleeping. She did not report having any weakness, fatigability, decreased endurance, incoordination, or flare-ups. A physical examination revealed no tenderness to percussion, postural abnormalities, fixed deformities, or spasm. Musculature was symmetrical. There was pain with range of motion, but there was no additional weakness, fatigability, decreased endurance, or incoordination. There was also pain with repetitive motion, but the examiner indicated that it would be speculative to comment further on range of motion, fatigability, incoordination, pain, or flare-ups. At an August 2010 VA examination, the Veteran reported having constant neck pain on both sides of the neck over the trapezius region bilaterally. The pain was aching with muscle tightness and sharp pain between the shoulder blades. There was a history of fatigue, decreased motion, stiffness, weakness, spasm, and pain, but no incapacitating episodes. The Veteran stated that the low back was worse in limiting function than her neck pain. Upon examination, there was normal posture, head position, and symmetry, and there was no cervical spine ankylosis. There were spasms, pain with motion, and tenderness of the cervical sacrospinalis, but no atrophy, guarding, or weakness. The spasms and tenderness were not severe enough to cause abnormal gait or spinal contour. She had cervical spine flexion to 45 degrees with pain beginning at 15 degrees. Otherwise, there was pain at the end ranges of motion. There was no objective evidence of pain following repetitive motion, but there were additional limitations due to pain, to include flexion limited to 30 degrees. There were 2+ reflexes and 5/5 motor strength of the bilateral upper extremities. There was normal muscle tone and no atrophy. The low back and neck conditions caused decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, and pain. Here, the Board finds that there are no additional functional limitations that warrant an increased evaluation. Although pain begins at 15 degrees of flexion, pain alone does not provide for an increased evaluation. See Mitchell, 25 Vet. App. at 33, 43. Repetitive motion or use causes a decrease in flexion to 30 degrees, which does not provide for an increased evaluation. See 38 C.F.R. § 4.71a, General Rating Formula. Additionally, despite the decreased range of motion due to pain upon use, spasms, and tenderness throughout the time period, the Veteran retained full muscle strength, normal reflexes, normal muscle tone, no change in spinal contour, and no guarding or weakness. On balance, the Board finds that there any additional functional loss is contemplated in the 20 percent rating and that an increased evaluation on this basis is not warranted. Schedular evaluation for lumbar spine degenerative disc disease The Veteran's lumbar spine degenerative disc disease is assigned a 60 percent evaluation under Diagnostic Code 5243 for intervertebral disc disease, which contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). This is the maximum evaluation permitted under this diagnostic code; thus, no higher evaluation is warranted. An increased evaluation under other potentially applicable diagnostic codes has been considered. Schafrath, 1 Vet. App. at 595. Under the General Rating Formula, the next highest evaluation is a 100 percent evaluation for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Unfavorable ankylosis is a condition in which or the entire spine is fixed in flexion or extension, and the ankylosis results in additional limitations. 38 CFR § 4.71a, General Rating Formula Note (5). At a November 2008 VA examination, there was lumbar spine flexion to 60 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and bilateral rotation to 30 degrees. At an August 2010 VA examination, there was lumbar spine flexion to 50 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 15 to 20 degrees. Thus, the evidence does not demonstrate that there was any lumbar spine fixation in extension or flexion or other fixation of a spinal segment at any point during the appeal period. Accordingly, the General Rating Formula does not provide for an increased evaluation. The Board has also considered whether a separate rating is warranted for any neurological component of the Veteran's lumbar spine degenerative disc disease. See 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note (1). Here, VA records dated in March 2008, March 2010, and April 2010 and November 2008 and August 2010 VA examination reports show that the Veteran reported having lumbar spine pain that radiated down into her lower extremities. At the August 2010 VA examination, the Veteran also reported having pain that radiated down the right leg to the buttock, into the calf and her toes. In VA records dated in August 2005, December 2006, January 2007, March 2008, and at the August 2010 VA examination, the Veteran denied having bowel or bladder incontinence. The Board finds that the objective evidence of record indicates neurological manifestations of the lumbar spine condition. A March 2008 VA medical record noted a diagnosis of lumbar spondylosis with radiculopathy. At the August 2010 VA examination, there was absent right ankle jerk and some decreased sensation and muscle strength of the right lower extremity. The examiner stated that a clinical examination suggested right S1 radiculopathy that is likely longstanding and correlates with the L5-S1 disc disease status post laminectomy. The examiner also noted, however, that Veteran's sensory complaints did not follow a dermatomal or peripheral nerve pattern and were of uncertain etiology and significance and that some nonorganic physical signs were positive. However, VA records dated in August 2005, August 2006, December 2006, January 2007, and April 2009 also note some decreased sensation of the right lower extremity. Left lower extremity sensation was intact. Although the 2010 examiner noted positive nonorganic signs, the examiner expressly noted a diagnosis of radiculopathy. Resolving all reasonable doubt in favor of the Veteran and in conjunction with the prior diagnosis of record and consistent findings of decreased right lower extremity sensation throughout the time period, the Board finds that there is radiculopathy of the right lower extremity. The Board also finds that there are no objective neurological abnormalities of the left lower extremity. VA records dated in August 2005, August 2006, December 2006, January 2007, March 2008, April 2009, and March 2010, and the November 2008 and August 2010 VA examination reports noted intact sensation of the left lower extremity, although there was some reduced muscle strength. At no point did an examiner suggest left lower extremity neurological complications. Thus, although the Veteran intermittently reported pain that radiated into her left lower extremity, the objective evidence of record does not demonstrate associated neurological abnormalities. Accordingly, a separate evaluation is only warranted for right lower extremity radiculopathy. For neuritis, neuralgia, and paralysis of the sciatic nerve 10, 20, and 40 percent evaluations are assigned for incomplete paralysis that is mild, moderate, and moderately severe. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720. A 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation is assigned for complete paralysis, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and the flexion of knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720. Here, the Veteran's radiculopathy is most closely approximated by mild incomplete paralysis. Throughout most of the relevant time period, the objective evidence of record shows decreased sensation of the right lower extremity, but full or almost full right lower extremity muscle strength, normal reflexes, and a normal gait. In March 2010, there was an absent right ankle jerk, an abnormal gait, and slightly reduced strength, but the Veteran did not use assistive devices, reported no unsteadiness, and there was no abnormal muscle tone or muscle atrophy. On balance, these findings demonstrate a mild incomplete paralysis rather than moderate. Accordingly, a 10 percent separate evaluation, but no more, is warranted. The Board has also considered an increased evaluation based on the presence of additional functional loss not contemplated in the current 60 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206. In an August 2005 VA record, the Veteran reported having low back pain that was so severe she could not sit for long periods of time. There were normal reflexes, 5/5 motor strength of the lower extremities, and a normal gait. In a July 2006 submission, the Veteran reported having chronic pain in her coccyx area whether sitting or standing. She reported being bedridden for two to three days at a time due to the pain, swelling, and the weakness in her legs. In an August 2006 VA record, the Veteran reported having low back pain. On examination, there was 2+ reflexes, 5/5 motor strength of the lower extremities, and a normal gait. In December 2006 and January 2007 VA medical records, the Veteran reported having pain that radiated into her tailbone and her bilateral legs. There was 2+ reflexes, 5/5 motor strength of the right lower extremity, slightly reduced strength of the left lower extremity, and a normal gait. In a February 2007 statement, a VA physician noted that the Veteran had chronic back pain and was on pain medications. In a January 2007 VA record, there were normal bilateral reflexes. Motor strength was 5/5 on the right and slightly reduced on the left. There was a normal gait. In a June 2007 statement, the Veteran reported having severe chronic pain and muscle spasms. Her only option to avoid spinal fusion was the continued use of medication for pain and spasms. In a December 2007 substantive appeal, the Veteran stated that she was dependent on medication just to function. In a March 2008 VA record, the Veteran reported having back pain and denied any new weakness. There were normal reflexes and gait. There was 5/5 muscle strength of the lower extremities with the exception of some decreased left lower extremity strength. In a November 2008 VA examination report, the Veteran indicated that her pain was not incapacitating and that she could function and perform her daily activities. She reported taking medication and using a lower back brace, but did not report weakness, fatigability, decreased endurance, incoordination, or flare-ups. An examination revealed no tenderness, postural abnormalities, fixed deformities, or spasm. Musculature was symmetrical. There was pain with range of motion, but no weakness, fatigability, decreased endurance, or incoordination. There was pain with repetitive motion, but the examiner found that it would be speculative to comment further on range of motion, fatigability, incoordination, pain, or flare-ups. In an April 2009 VA record, the Veteran reported having back pain. There was a normal reflex examination, a normal gait, and 5/5 muscle strength of the lower extremities, except for some reduced left lower extremity strength. In a March 2010 submission, the Veteran reported having severe chronic pain and muscle spasms. She stated that lumbar fusion was an option, but that it would not guarantee a full recovery. She took multiple medications. In a March 2010 VA record, the Veteran reported having pain that radiated down both legs and occurred with sitting, lying down, and walking. She had most relief sitting in bed with a pillow under her legs. She tried to walk 10 to 15 minutes per day, but had recently been limited by pain. She exercised daily with a reclining bike and hand weights. Upon examination, there was 5/5 strength of the right lower extremity and 4+/5 of the left lower extremity. There were diminished knee and patellar reflexes, but plantar reflexes were downgoing bilaterally. There was also a normal gait. In an April 2010 VA record, the Veteran reported having severe pain of the tailbone region that was sharp like a knife. Sitting and standing worsened her pain, and sitting on her side and laying in bed decreases the pain. At an August 2010 VA examination, the Veteran reported having constant low back pain of the coccyx region. She stated that her pain medication was no longer effective and that she had a TENS unit, but did not use it much. She reported numbness, paresthesias, and leg or foot weakness, but no falls or unsteadiness. There was a history of fatigue, decreased motion, stiffness, weakness, spasm, and pain. The pain was constant and worse with sitting, prolonged standing, or being active. The pain was severe, dull with tightness, and superimposed sharp pain. There were no incapacitating episodes. The Veteran stated she could walk three blocks and that the low back was worse in limiting function than her neck pain. Upon examination, there was normal posture, but an abnormal gait that was slow without assistive devices. There was pain with tenderness of the lumbar sacrospinalis, but no spasm, atrophy, guarding, or weakness. The tenderness was not severe enough to cause an abnormal gait or spinal contour. For lumbar range of motion, there was no objective evidence of pain following repetitive motion, but pain caused flexion to 30 degrees. There were 2+ reflexes of the bilateral lower extremities, except for absent reflexes of the right ankle jerk. There was 5/5 motor strength of the left lower extremity. There was 4/5 muscle strength of right hip flexion, hip extension, knee flexion and extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. There was also normal muscle tone and no atrophy. The low back and neck conditions caused decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, and pain. Here, the Veteran has consistently reported having severe lumbar spine pain that has limited her walking and exercise. She reported the use of medication that was no longer effective and the use of a lower back brace. However, throughout the relevant time period, the objective evidence of record indicates full or almost full muscle strength of the bilateral lower extremities and normal reflexes. There are some right lower extremity reduced reflexes, but those symptoms are reflected in the previously assigned evaluation for neurological abnormalities, and a normal gait. See 38 C.F.R. § 38 C.F.R. § 4.14 (2012) (the evaluation of the same disability or the same manifestations of a disability under various diagnoses constitutes pyramiding and is prohibited); but see Esteban v. Brown, 6 Vet. App. 259 (1994) (finding that when a veteran has separate and distinct manifestations attributable to the same injury, however, he should be compensated under different diagnostic codes). At the August 2010 VA examination, there was an abnormally slow gait, but there were no falls, unsteadiness, atrophy, guarding, or weakness. The Veteran has retained normal posture throughout the appeal period. The Board finds that there is no additional functional loss not contemplated in the 60 percent rating and that an increased evaluation on this basis is not warranted. After review of the evidence, the evidence of record does not warrant ratings in excess of those assigned at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); see also Fenderson, 12 Vet. App. at 126. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Other considerations Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors, such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected lumbar and cervical spine disabilities, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders, as the criteria assess range of motion, additional functional limitations, neurological manifestations of the disabilities, and incapacitating episodes. Accordingly, these issues need not be referred for consideration of extraschedular ratings. Finally, the Board notes that it has not addressed the issue of entitlement to a total disability rating based on individual unemployability (TDIU). Once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the issue of entitlement to TDIU is raised. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009); VAOPGCPREC 6-96 (August 16, 1996). Although the Veteran has consistently asserted unemployability due to her spine, she is in receipt of TDIU since 1997, almost 10 years prior to the claims on appeal. Accordingly, the issue is not addressed herein. ORDER An evaluation in excess of 20 percent for the service-connected cervical spine degenerative disc disease is denied. An evaluation in excess of 60 percent for the service-connected lumbar spine degenerative disc disease is denied. A separate 10 percent evaluation, but no more, is warranted for right lower extremity radiculopathy, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs