Citation Nr: 1300883 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-06 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for degenerative arthritis of the cervical spine (cervical spine disability), evaluated as 20 percent disabling prior to October 1, 2009 (excluding periods of temporary total rating) and 40 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to August 1986. He also had a period of active duty for training (ACDUTRA) from September 1975 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the August 2006 rating decision the RO continued a 20 percent rating for the Veteran's cervical spine disability. In December 2008, the Veteran and his son testified at a hearing before the undersigned. In February 2009 and April 2011, the Board remanded the appeal for additional development. While the case was in remand status, the RO, in a June 2012 rating action, increased the rating for the cervical spine disability to 40 percent effective October 1, 2009. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). In the June 2012 rating action, the RO also granted separate ratings for sensory neuropathy, paresthesia of the left arm and right arm paresthesia. And since the Veteran did not, in response, appeal either the ratings or effective date assigned for these disabilities, they are not at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) In the April 2011 remand, the Board noted that Agency of Original Jurisdiction (AOJ) received statements from the Veteran that raised the issue of entitlement to a total rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board referred this issue to the AOJ for appropriate action. Reviewing the claims file, a June 2012 letter shows that the Appeals Management Center (AMC) referred this issue to the AOJ. FINDINGS OF FACT 1. Prior to October 1, 2009, the preponderance of the medical evidence indicates the Veteran's cervical spine disability was manifested by pain, stiffness, weakness, fatigue, and limitation of motion with flexion varying from 20 to 40 degrees with no ankylosis, or incapacitating episodes having a total duration of at least two weeks in a twelve-month period, nor was there credible and competent evidence of any associated neurological disabilities. 2. As of October 1, 2009, the preponderance of the medical evidence indicates the Veteran's cervical spine disability was manifested by pain, sensory neuropathy of the upper extremities, with unfavorable ankylosis; there is no evidence of incapacitating episodes having a total duration of at least six weeks in a twelve-month period. 3. The Director of Compensation and Pension Service has determined the Veteran does not meet the extraschedular criteria based on cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent prior to October 1, 2009 for the cervical spine disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321 (b)(1), 4.16, 4.3, 4.71a, Diagnostic Codes (DC's) 5237, 5242 (2012). 2. The criteria for an evaluation in excess of 40 percent for the cervical spine disability from October 1, 2009 to the present have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 38 C.F.R. §§ 3.321(b)(1), 4.16 , 4.3, 4.71a, DC's 5237, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regards the claim on appeal. The Veteran must not assume that the Board has overlooked any pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159. 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 that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in July 2006. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. In this letter, the Veteran also received notice pertaining to the downstream disability rating and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. In this regard, pursuant to the Board's April 2011 remand directive, the Veteran's Social Security Administration (SSA) and VA treatment records pertaining to the cervical spine disability have also been associated with the file. Further, private medical records identified by the Veteran have been obtained to the extent possible. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. The Veteran was afforded VA examination in May 2011 to address the severity level of the Veteran's service-connected cervical spine disability. To that end, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2. The Board finds that the VA examination, is more than adequate, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its April 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there have been changes in the severity of the disability, the Board will need to "stage" the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. The Veteran's cervical spine disability was rated 20 percent disabling from October 31, 2003; 100 percent disabling from April 22, 2008 to June 30, 2008; 20 percent disabling from July 1, 2008 to March 12, 2009; 100 percent disabling from March 13, 2009 to September 30, 2009; and 40 percent disabling from October 1, 2009. The Veteran claims his cervical spine disability is more severe than currently rated. The Veteran's neck disability is evaluated under DC 5242, for degenerative arthritis of the cervical spine. Initially, the Board notes that arthritis may also be rated under DC 5003, for degenerative arthritis. DC 5003, however, does not provide for a rating greater than 20 percent. See 38 C.F.R. § 4.71a, DC 5003. Under the General Rating Formula, the criteria for a 10 percent rating are forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, where the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal spinal contour; or, a vertebral body fracture with loss of 50 percent or more of the height. The criteria for a 20 percent rating are forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, where the combined range of motion of the cervical spine is not greater than 170 degrees; or, where there is muscle spasm or guarding severe enough to result in abnormal spinal contours. A 30 percent rating is warranted if forward flexion of cervical spine is limited to 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, DC 5235-5242. A note (2) to this code indicates that 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 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. Another note (6) indicated that disability of the thoracolumbar and cervical spine segments will be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The degenerative disc disease (DDD) component of the Veteran's cervical spine disability, i.e., the Intervertebral Disc Syndrome (IVDS), is evaluated (preoperatively or postoperatively) under DC 5243 either based on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. Whereas a higher 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. Note (1) to DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate diagnostic codes if it would result in a higher combined evaluation for the disability. For reasons explained immediately below, upon review of all pertinent medical evidence, the Board concludes the Veteran is not entitled to an increased rating for his spine disability at any time period. For the purposes of clarity, the discussion below is separated into different time periods. Regardless of the time period or regulations examined, however, the Board notes the VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). Prior to October 1, 2009 The RO received the claim for an increased rating in April 2006. For the period of April 4, 2006 to September 30, 2009, (and excluding his periods of temporary total rating based on convalescence from April 22, 2008 to June 30, 2008 and March 13, 2009 to September 30, 2009) the Veteran was assigned a 20 percent evaluation for his cervical spine disability. VA examination was conducted in July 2006. The Veteran complained of daily neck stiffness associated with pain and weakness. He rated the pain as 9 on a scale of 1 to 10. He had flare ups at least twice weekly which was precipitated by sleeping. Heat and massage relieved some of his symptoms. On examination, there was no evidence of any muscle atrophy in the neck or back regions. There was moderate tenderness noted over the paraspinal muscles in the cervical region, as well as decreased range of motion. On range of motion study, forward flexion was decreased to 40 degrees; extension was to 25 degrees; left and right lateral flexion was 30 degrees; right lateral rotation was 25 degrees; and left lateral rotation was 30 degrees. All function of the neck was associated with some moderate pain, both passively, and more so against resistance. There was also muscle tightness in the paraspinal and trapezius muscles. He was unable to perform repeated range of motion. A November 2007 private magnetic resonance imaging (MRI) revealed moderate disc degeneration at the C5-6 and C6-7 levels with spondylosis. There was mild disc degeneration at the C3-4 and C4-5 levels. There was also moderate and asymmetrical facet degeneration and hypertrophy on the left at the C2-3 level with narrowing of the foramen. Private medical records relate that in April 2008, the Veteran underwent C5-6 and C6-7 anterior cervical diskectomies with arthrodesis C5-6, C6-7 with donor allograft. A temporary total rating based on convalescence was granted beginning April 22, 2008 and ending June 30, 2008. A December 2008 post surgical follow up examination was conducted by the Veteran's private physician. He reported arm and neck pain. On range of motion study, his was able to flex to 20 degrees; extension was 5 degrees; turning was to 5 degrees. This was described as severely limited. A kyphotic deformity was noted at the C4-5 level above the level of the fusion. At his December 2008 hearing, the Veteran reported his medication regime which included Hydrocodone and Ibuprofen on a daily basis. He stated that he was unable to move his neck and had to move his whole body. He was unable to sleep comfortably for an extended period of time. He also used a transcutaneous electrical nerve stimulation (TENS) unit on a daily basis to relax his neck by sending electrical pulses. In February 2009, the Board remanded the case, in order to obtain VA and private treatment records from the Veteran's physician. The Board also requested VA compensation examination. In March 2009, he underwent another surgical procedure in which the anterior surgical plate was removed. Private medical records show that he underwent C3-C4, C4-C5, C5-C6, and C6-C7 posterior cervical arthodesis in July 2009. The Veteran was assigned a 100 percent rating from March 13, 2009 to September 30, 2009 based on convalescence following cervical spine surgical treatment. In light of these findings, there is no basis to assign a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran, did not have forward flexion of the cervical segment of his spine limited to 15 degrees or less or favorable ankylosis of this entire segment, even when considering the effects of his pain on his range of motion. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. During this time period, the range of motion of his cervical spine on normal use varied from 20 to 40 degrees. His cervical flexion was limited to 20 degrees at the post surgical private examination in December 2008. This exceeds the 15 degrees or less limitation required for a higher 30 percent rating under DCs 5235-5242. Plus, there was no evidence, that he had ankylosis of this segment of his spine-either favorable or unfavorable. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Moreover, Note (5) to DCs 5235-5242 indicates that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or the entire spine is fixed in flexion or extension. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. This clearly was not the situation here. The Board took into consideration the statements of the Veteran at his December 2008 Board hearing, in which he claimed that he was unable to move his neck. As noted above, this is inconsistent with the objective evidence of record, namely the December 2008 report of his private physician, which indicated that he had 20 degrees of cervical flexion. In fact, the Board finds very little probative value in his statements. As explained below, a VA examiner in June 2010 pointed out that the Veteran reported that he was taking hydrocodone on a daily basis for relief of pain; however, on diagnostic testing in February 2010, there was no evidence of opiates (hydrocodone) use, but there was positive evidence of cocaine use. In fact, the Veteran at the May 2011 VA examination, also reported that he had not used cocaine since 1996, but as noted there was a positive test for use of this illegal drug in February 2010. Still further SSA examiner also found that the Veteran was not completely credible. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has also considered Diagnostic 5243 as to the total duration of incapacitating episodes over the preceding 12 months. However, there is no evidence that any physician prescribed bed rest for the Veteran's cervical spine disability during the relevant time period. As such, a disability rating greater than 20 percent under Diagnostic Code 5243 is not warranted. Furthermore, as noted under Note (1) of the General Rating Formula, VA must evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. However, the VA examiner specifically found no neurologic deficits. The Veteran also was not found to have any bowel or bladder impairment associated with his spine disabilities. There was no muscle atrophy, sensory deficit, or other indications of neurological dysfunction found on any examination during this time period. Hence, there was no competent credible evidence of any separately ratable neurological manifestations of service-connected cervical spine disability. As of October 1, 2009 As of October 1, 2009 the Veteran has been assigned a 40 percent evaluation for his cervical spine disability based on unfavorable ankylosis. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent for his cervical spine disability from October 1, 2009 forward. In a letter dated in January 2010, the Veteran's private physician stated that the Veteran underwent two cervical spine surgical procedures in 2009. He believed that the Veteran was permanently disabled from work because he did not have any range of motion in his neck and also due to his cervical spine deformity. A VA examination was conducted in June 2010. The Veteran reported his medical history which included three surgeries with the last one conducted in July 2009. He stated that his pain had increased in severity since the last surgery. His symptoms included pain, stiffness, weakness, fatigability, lack of endurance, and incapacitation. On medication, his pain was 7 on a scale of 1-10 and 9 without medication. The pain was constant but did not extend beyond his shoulders. He had flare ups once every two weeks. This was relieved by pain medications. He wore a cervical collar. On examination, there was a noted loss of cervical lordosis, however, no scoliosis. The pronator drift was negative. There were no tremors, fasciculations, spasticity, or rigidity. Deep tendon reflexes of the triceps, biceps, and brachioradialis were 1/4 and equal, bilaterally. There was no atrophy, hypertrophy, or loss of tone. Strength testing against gravity and resistance was 5/5 and equal, bilaterally in the upper extremities. There was normal and bilaterally equal sensation to pinprick and light touch of the upper extremities. The range of motion was as follows: forward flexion 0 to 20 degrees; extension 0 to 10 degrees; left and right lateral flexion 0 to 10 degrees; and left and right lateral rotation 0 to 10 degrees. All range of motions were limited by pain and stiffness. There was no loss of function with repetitive use, except as noted. The diagnoses included degenerative disc disease (DDD) of the cervical spine, arthrodesis, C3-C4 and C4-C5, moderate to severe functional impairment. There were no neurological manifestations such as radiculopathy complained of by the Veteran or noted on examination. In reporting the diagnoses, the examiner noted that the Veteran complained of worsening pain that he treated with Hydrocodone. However, on the drug screen that was performed in February 2010, it did not confirm the routine use of opioids (hydrocodone). In fact, the Veteran only tested positive for cocaine. Based on this examination and evaluation, this examiner determined that the Veteran could be expected to engage in light and sedentary activity in employment that did not require full active range of motion of the cervical spine. In a statement dated in October 2010, the Veteran's private physician reported that the Veteran did not have any range of motion of the neck. There was also weakness in the arms. The physician felt that the Veteran was totally and permanently disabled, even from light duty. In April 2011, the Board again remanded the case for records from SSA, VA treatment records, private medical records, VA examination, and extra-schedular consideration by the Director of Compensation and Pension. SSA physical residual functional capacity assessments dated in June and July 2010 acknowledged there was evidence of cervical spine stenosis. Exertional limitations in terms of lifting, standing and sitting were found along with postural limitations including frequent balancing limitations and occasional climbing, stooping, kneeling, crouching and crawling limitations. The examiners noted at this time that the Veteran's allegations of limitations were only partially credible in light of the medical evidence. Although it was reasonable for the Veteran to state he had neck pain, it was not reasonable to state he could not function at the level cited in his residual functional capacity (RFC). After considering the Veteran's medical record, age, education, training, and work experience, the SSA found that his conditions (including hypertension) were not severe enough to keep him from working. The Veteran's private physician, in a May 2011 letter, stated that the Veteran had a progressive swan neck deformity with spinal stenosis and myelopathy. At this point, his x-rays look stable. He had a rock solid fusion from C3 down to C7, anteriorly and posteriorly. He also had some motion at the C2-C3 level with some swan deformity. At that point, the private physician felt that the Veteran was completely disabled. VA examination was conducted in May 2011. The Veteran reported his medical history and symptoms. His symptoms included neck pain with radiation and decreased head motion. The Veteran indicated that he did not have flare ups. He had difficulty lifting weights. In reporting his drug use, he stated that his last use of cocaine was in 1996. On examination, the deep tendon reflexes were considered hypoactive. On motor examination, there was no muscle atrophy or loss of tone. Strength testing was 5/5. In light of the Veteran's disability, no range of motion study was conducted. Cervical spine X-ray dated in May 2011 revealed solid C3-C7 cervical fusion. There was a kyphotic curvature at C2-C3 and degenerative narrowing at C7-T1. The examiner noted that the cervical spine was unfavorably ankylosed. The examiner concurred with the private neurosurgeon who stated at that time the Veteran had progressive swan neck deformity with spinal stenosis and myelopathy. The examiner concluded that he was completely disabled, noting that he had has no range of motion in his cervical spine. Applying the rating criteria, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 40 percent for orthopedic manifestations of his cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine. An evaluation greater than 40 percent is not warranted as there is no objective evidence of unfavorable ankylosis of the entire spine during this period. Id. In considering DeLuca, the Veteran reported that he was suffering from constant cervical spine pain which was 7 on a scale of 1-10 while on medication, and 9 without medication. The pain was constant but did not extend beyond his shoulders. He had flare ups once every two weeks, which was relieved by pain medications. As noted the Board is unable to gauge his pain based on his statements due to his unreliability. Especially when one considers that his laboratory testing indicates that he is not taking the pain medication, which he states is needed for the control of pain. The May 2011 VA examination indicated that there was no objective evidence of muscle atrophy or loss of muscle tone. He also had 5/5 strength despite his inability to move his neck completely. The Board acknowledges that the Veteran contends his cervical spine disability should be rated higher than 40 percent disabling. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected cervical spine disability. 38 C.F.R. § 3.159(a)(1) and (2). In reviewing the record in its entirety, the Board does not find that the Veteran should be assigned an increased rating due to functional limitations. Still further, there is no evidence that any physician prescribed bed rest for the Veteran's cervical spine disability during the relevant time period. As such, a disability rating greater than 40 percent under Diagnostic Code 5243 is not warranted. And as for any neurological manifestations, he has been granted separate ratings under DC 8710 for his sensory neuropathy of the right and left upper extremities. The Veteran has not disagreed with the disability evaluations that were assigned. As discussed above, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent prior to October 1, 2009 and 40 percent thereafter for his cervical spine disability. The Board has considered whether the benefit of the doubt rule applies the Veteran's appeal. 38 U.S.C.A. § 5107(b); Gilbert, supra. However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. In exceptional cases where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of 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). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). As noted, the case was referred to the Director of Compensation and Pension Service (Director) in March 2012 for an analysis on extraschedular evaluations. The Director noted that the regular rating schedule standards provides for his cervical spine disability with associated neuropathy of the upper extremities. It was further noted that the Veteran had not been hospitalized for any extended period of time due to the cervical spine disabilities. The Director concluded that the totality of the evidence did not support the contention that the Veteran's cervical spine disability was so exceptional or unusual as to render the use of the regular rating schedule standards impractical. Although the Board may not assign an extraschedular evaluation in the first instance, the Board must evaluate the Director's conclusion to determine whether the mandates of the Remand have been completed under the applicable law and regulations. The Board concludes that the Director considered all the evidence of record, including the Veteran's statements and testimony and properly applied the correct regulations, Diagnostic Codes, and the criteria under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). The Veteran's symptomatology and limitation in occupational functioning for the disability on appeal is reasonably contemplated by the rating schedule. The Veteran's symptoms of chronic pain and numbness are adequately contemplated in the current ratings assigned for his cervical spine and sensory neuropathy. The schedular criteria specifically provides for rating spine disabilities on the basis of limitation of motion; or ankylosis; or incapacitating episodes. See 38 C.F.R. §§ 4.71a , DCs 5235-5243. Additional manifestations of the Veteran's service-connected cervical spine disability, to include related sensory neuropathy have been contemplated by the separate ratings assigned for each upper extremity. Further, and as indicated in the Board's decision, although the schedular criteria provide for evaluations higher than the currently assigned ratings, his degenerative diseases of the cervical spine and sensory neuropathy have not manifested with the symptoms required to achieve such higher ratings. For these reasons, the Veteran's disability picture (e.g. his disability level and cervical spine and sensory neuropathy symptomatology) is adequately, and appropriately, contemplated by the applicable schedular rating criteria. The assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, the schedule provides for a greater evaluation for additional or more severe symptoms which simply are not present in this case. The current schedular criteria adequately compensate the Veteran for the current level of disability and symptomatology of his degenerative diseases of the cervical spine and his sensory neuropathy. Further, as noted above, the criteria for extraschedular evaluation contemplates whether there is a marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b). The Board observes that "marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous." See Webster's New World Dictionary, Third College Edition (1988) 828. While his disability certainly interferes with his work as a fork lift driver, the Board does not find that such disability is above and beyond that contemplated by the respective schedular ratings. As noted above, there are differing opinions regarding his ability to work. The SSA concluded that he would be capable of performing this type of work once he has recovered from his surgical procedures. Furthermore, the VA examiner in June 2010 found that he would be able to work in a sedentary position. Whereas the Veteran's private physician and the VA examiner in May 2011 found that he was totally disabled. In this case the Board finds the SSA and June 2010 VA examiner conclusions are more probative. The Board notes that the private physician's and the May 2011 VA examiner's opinions were entirely conclusory in that the examiners did not provide any underlying rationale. The Court has held that the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that Board may not assess probative value of "a mere conclusion by a medical doctor"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). The SSA conclusions were based on a battery of testing including functional assessments. The June 2010 VA examiner also examined the Veteran and relied on objective testing including laboratory diagnostics to show that the Veteran was not presenting a true picture of his disability. While neither the private physician nor the May 2011 VA examiner gave reasons for their determination. Furthermore, neither commented on the credibility of the Veteran. While he underwent surgeries to stabilize his cervical spine disability, since then, he has not required any inpatient treatment, much less on a frequent basis. Instead, his evaluation and treatment for these disabilities has exclusively, on an outpatient basis during the appeal period. So, in short, the record as a whole does not show that the interference with his work caused by his service-connected disabilities, individually, could be considered above and beyond that contemplated by the schedular ratings assigned for these disabilities. See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). In conclusion, since the rating schedule adequately addresses the symptomatology for the disabilities at issue in this appeal, and an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. See Thun, supra. See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an increased rating in excess of 20 percent for the cervical spine disability, prior to October 1, 2009, is denied. Entitlement to an increased rating in excess of 40 percent for the cervical spine disability, as of October 1, 2009, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs