Citation Nr: 1302189	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  95-35 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for a neurological disorder affecting the bilateral upper extremities, to include carpal tunnel syndrome and cervical radiculopathy. 

2. Entitlement to an initial disability evaluation in excess of 20 percent for a herniated intervertebral disc at L5-S1 (low back disability). 

3. Entitlement to an initial disability evaluation in excess of 20 percent for degenerative disc disease at C5-C6 (cervical spine disability). 

4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. 


REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel

INTRODUCTION

The Veteran had active military service from July 1972 to December 1975 and from June 1981 to February 1995. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in August 1995 and February 1999.  The August 1995 rating decision granted service connection for chronic low back strain and assigned a noncompensable disability evaluation, effective March 1, 1995.  The Veteran appealed the assigned rating, which was subsequently increased in a June 1996 rating decision to 20 percent, also effective from March 1, 1995.  The disability was recharacterized as a herniated intervertebral disc at L5-S1.  The February 1999 rating decision denied service connection for carpal tunnel syndrome and the assignment of a TDIU. 

In light of recent guidance from the United States Court of Appeals for Veterans Claims (Court), the Board has recharacterized the Veteran's service connection claim for bilateral carpal tunnel syndrome more broadly to include any neurological disorder affecting the bilateral upper extremities.  Specifically, during the pendency of this appeal, the Court issued two precedential decisions which provide more guidance as to how VA should interpret claims.  In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  In Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Court held that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability.  In other words, the claim need not be limited to a particular diagnosis or pathology as long as the symptoms of the disability are adequately identified.  Because competent evidence of record shows that at least some of the symptoms affecting the Veteran's upper extremities have been caused by nerve compression associated with his cervical spine disability, the Board finds that this neurological abnormality is encompassed by the Veteran's service connection claim for carpal tunnel syndrome.  Thus, this claim has been recharacterized accordingly, which is in keeping with the Court's decisions in Clemons and Brokowski, and with VA's duty to construe claims liberally.  See Szemraj v. Principi, 357 F.3d 1370 (2004); accord Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 

The Board issued a decision in December 1999 which denied an initial rating in excess of 20 percent for the service-connected low back disability.  The Veteran filed a timely appeal to the Court.  In October 2000, the Court vacated the Board's December 1999 decision and remanded the case to the Board for additional development. 

The Board remanded this case to the RO for additional development and further adjudicative action in June 2001.  Thereafter, in a decision dated in July 2002, the Board denied the claim of service connection for carpal tunnel syndrome and an increased rating for the low back disability.  In April 2003, the Court vacated the Board's July 2002 decision and remanded the case to the Board to obtain additional evidence and to cure specified due process deficiencies.  The case was subsequently remanded by the Board to the RO via the Appeals Management Center (AMC) in December 2003.  The issue of entitlement to a TDIU was remanded in a June 2003 Board decision. 

In January 2006, the Board again denied a rating in excess of 20 percent for the service-connected low back disability.  The issues of entitlement to service connection for bilateral carpal tunnel syndrome and entitlement to a TDIU were remanded for additional development and to address due process concerns. 

The Veteran filed a timely appeal to the Court regarding the Board's denial of his claim for an increased rating, and in a February 2008 Memorandum Decision, the Court set aside that portion of the January 2006 decision regarding the claim for increased rating and remanded the claim to the Board.  Judgment was entered on March 12, 2008.  The claims were subsequently remanded by the Board in November 2009 for additional development and to address due process concerns.  Specifically, the RO/AMC was instructed to provide notice pertinent to the claims, to obtain additional VA treatment records, and to schedule the Veteran for appropriate VA examinations. 

The Board remanded this case again in February 2011 to ensure substantial compliance with its November 2009 remand directives and for additional development.  The case now returns for appellate review. 

In an October 2012 brief, the Veteran raised service connection claims for depression and anxiety, to include as secondary to his service-connected disabilities, and for a digestive disorder.  As the Board previously noted, the Veteran has raised other claims that have not been considered by the RO.  Specifically, as discussed in the Board's July 2002, December 2003, January 2006 and November 2009 decisions, the Veteran submitted a statement in February 1999 that raised a question as to timeliness and/or adequacy of his appeal of entitlement to service connection for asbestos exposure and hearing loss.  He once again raised these issues in a December 2010 statement.  The RO has not yet adjudicated these claims.  Therefore, the Board does not have jurisdiction over them, and they are REFERRED to the RO for appropriate action. 

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dating up to September 2012 which were reviewed by the AMC, as indicated by the October 2012 supplemental statement of the case (SSOC). 

The issues of entitlement to an initial rating in excess of 20 percent for a cervical spine disability, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  Because the evaluation of the Veteran's cervical spine disability has a bearing on the issue of entitlement to TDIU, and because remands under Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) for the issuance of a statement of the case (SOC) are generally addressed by the RO rather than the AMC, the AMC is respectfully requested to coordinate with the RO to ensure efficient and expeditious processing of these issues  


FINDINGS OF FACT

1. The Veteran has cervical radiculopathy of the bilateral upper extremities due to nerve impingement caused by his service-connected cervical spine disability which has been present ever since active military service. 

2. The Veteran does not have carpal tunnel syndrome in either upper extremity.

3. Throughout the pendency of this appeal, the Veteran's low back disability has been characterized as moderate, and manifested by pain and limited range of motion, with flexion exceeding 30 degrees, no associated neurologic abnormalities, no incapacitating episodes with prescribed bed rest, and no additional limitations due to pain, fatigue, weakness, or incoordination with repetitive use. 


CONCLUSIONS OF LAW

1. The criteria for service connection for radiculopathy of the bilateral upper extremities are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012).

2. The criteria for service connection for carpal tunnel syndrome of either upper extremity are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

3. The criteria for an initial rating in excess of 20 percent for a low back disability are not met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002 & 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  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 claimant).  

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 claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The Veteran's claim of entitlement to service connection for cervical radiculopathy of bilateral upper extremities has been granted, as discussed below.  Therefore, any error related to the VCAA on this claim is moot.  See id.; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  VA's duty to notify and assist with regard to the Veteran's service connection claim for carpal tunnel syndrome and his appeal of the initial rating assigned his service-connected low back disability have been satisfied, as shown in the following discussion. 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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, 187 (2002).  All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Notifying the claimant of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements for both service connection claims and initial rating cases.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

Here, in accordance with the Board's remand directives, a September 2012 letter informed the Veteran of all five elements of service connection, including the degree of disability and effective date, gave examples of the types of evidence the Veteran could submit in support of his claims, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence.  This letter was followed by readjudication of the Veteran's claims in an October 2012 supplemental statement of the case (SSOC), thereby curing any timing defect.  See Mayfield, 499 F.3d at 1323.  Moreover, an October 2012 Report of General Information (VA Form 21-0820) reflects that the Veteran was contacted by phone and that he indicated that he received the letter and had no additional evidence to submit.  Therefore, the duty to notify has been satisfied with regard to the Veteran's service connection claim and the appeal of the initial rating assigned his service-connected low back disability.  See id.  

The Board also notes that the Veteran has not alleged or shown any prejudicial deficiencies in the notice provided to him with regard to the initial rating of his low back disability, and further notice is not required.  See Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records, VA medical records dating up to 2012, and Social Security Administration (SSA) records are in the claims file.  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 claims.  Thus, VA has discharged its duty to assist in obtaining relevant records on the Veteran's behalf.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the veteran's disability, a new VA examination must be conducted.   See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Here, in accordance with the Board's remand directives, VA spine, carpal tunnel, and peripheral nerve examinations were performed in August 2012.  The Board finds that the VA examination reports are adequate for the purpose of rendering decisions on these claims.  Specifically, the examiner reviewed the claims file and medical history, conducted examinations of the Veteran and documented the clinical findings, and provided rationales for all opinions stated which are grounded in and consistent with the evidence of record and the examiner's clinical findings.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  

The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his low back disability since he was last examined by VA in August 2012.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion is satisfied.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

In sum, VA's duty to notify and assist has been satisfied, the Veteran has had ample opportunity to participate in the development of his claims, and there is no indication of any prejudicial error.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  Further, as shown in the above discussion, there has been substantial compliance with all of the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

II. Service Connection

The Veteran claims entitlement to service connection for a neurological disorder of the bilateral upper extremities, to include carpal tunnel syndrome and cervical radiculopathy.  For the following reasons, the Board finds that service connection is warranted for cervical radiculopathy of the bilateral upper extremities, but not for carpal tunnel syndrome.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for certain chronic disabilities, including organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

In order to establish service connection on a direct basis for a claimed disorder, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

The Federal Circuit observed that there is a statutory requirement that lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount its probative value if it finds the evidence not competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to state "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and to find categorically that the claimant's testimony on this issue was not competent because she was a lay person).  

Lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See id. at 1316.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  

Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  

Lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit has provided some guidance in making this assessment, holding that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight and credibility assigned to the evidence.  As explained by the Court, "the former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted."  Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

A. Bilateral Radiculopathy of the Upper Extremities 

The balance of the evidence shows that during  the pendency of this claim the Veteran has had cervical radiculopathy of the left upper extremity which had its onset during active service and is associated with his service-connected cervical spine disability.  

The service treatment records show repeated findings over the course of several years of cervical radiculopathy as the cause of the Veteran's upper extremity symptoms.  Specifically, a July 1991 entry states that the Veteran had decreased power in the left upper extremity as well as "a little" in the right.  Decreased coordination was also noted.  Further, there was questionable trace left C7 weakness in finger extension.  The Veteran was diagnosed with atypical radiculopathy.  

A January 1992 neurosurgery consultation report states that the Veteran had a three-year history of left arm pain and neck pain consistent with a C6 radiculopathy.  It was noted that a September MRI showed a large disc herniation at C5-6 which was worse on the left than the right, with root and minor spinal cord compression.  The author suggested that if the Veteran's radiating pain persisted despite inactivity, surgery might be indicated.  However, a May 1992 consultation report states that surgery was not warranted as the Veteran's symptoms improved with physical therapy.  

In September 1992, the Veteran was placed on physical profile for three months due to cervical radiculopathy.  A May 1993 periodic examination report confirms a diagnosis of cervical neuropathy.  

The Veteran was again diagnosed with cervical radiculopathy in a May 1994 service treatment record when he reported pain in his left arm which sometimes travelled to his chest.  Another May 1994 entry shows complaints of neck pain and left upper extremity paresthesias.  It was noted in this record that a January 1993 MRI showed a disc bulge at C5-6.  The November 1994 retirement examination indicates that no neurologic abnormalities were found on clinical evaluation, but notes the herniated disc at C5-6 associated with degenerative joint disease. 

In sum, the service treatment records show a consistent diagnosis of cervical radiculopathy of the upper extremities, especially the left, associated with a disc bulge at C5-6 which caused nerve compression at that level. 

The post-service treatment records also show upper extremity pain and numbness diagnosed as cervical radiculopathy.  Specifically, a February 1996 VA examination report states that the Veteran had chronic neck pain radiating down the left arm since 1988.  

An August 1997 private MRI study showed significant posterior osteophyte formation centrally and bilaterally at C5-6 with impingement upon both neural foramina at this level.  It also showed posterior osteophyte formation of the right at C4-5, with significant narrowing of the right neural foramen. 

In August 1997 the Veteran underwent an EMG and nerve conduction study at a private facility due to a two-month history of numbness in the arms.  The study was "suggestive" of C7-T1 nerve root irritation or radiculopathy.  

A January 1998 private treatment record shows that the Veteran reported numbness in both arms, and the assessment was radiculopathy versus carpal tunnel syndrome. 

A February 1998 VA EMG and nerve conduction study showed electrophysiological evidence of bilateral C4-5 and C5-6 cervical polyradiculopathies.  

A March 1998 private treatment record reflects that a Dr. E.M., who initially diagnosed carpal tunnel syndrome, concluded that the Veteran did not have carpal tunnel syndrome but rather a mild radiculopathy. 

A February 1999 VA MRI showed a large disc protrusion which impinged the left C6 nerve root fibers and also impinged the nerve root itself in its foramen and the spinal cord.  There was also some narrowing of the foramen on the right at the C5 and C6 nerve roots. 

A June 1999 VA treatment record showed weakness of the left bicep and the dorsum of the left hand.  The Veteran was diagnosed with left C6 radiculopathy with a decrease in left bicep strength.  

An October 2000 VA MRI study showed impingement of the left C6 nerve root fibers and possible impingement of the spinal cord.  There was also less severe bilateral nerve C6 nerve root foramen narrowing at this level, as well as less severe narrowing of the right C5 nerve root entry zone due to an osteophyte with some narrowing of the C5 nerve root foramen.  It was noted that at this time the Veteran complained of right shoulder pain and right radiculopathy.  

In an August 2003 VA neurological examination, the examiner concluded after reviewing the pertinent medical history and examining the Veteran that he had chronic neck pain with possible associated left C6-C7 compressive radiculopathy related to the degenerative disc disease of the cervical spine.  The examiner noted that the Veteran had decreased sensations in the left C6 dermatome with a mildly reduced left biceps reflect.  

In October 2007, the Veteran underwent a C5-6 anterior cervical diskectomy and fusion with a cervical plate.  The pre- and post-operative diagnosis was a left C5-6 disc herniation with a left C6 radiculopathy.  The operation report states that the Veteran had a long history of neck pain radiating to the left arm suggestive of radiculopathy and attributable to findings of a C5-6 disk herniation.  During the operation, the "symptomatic nerve root at C6" was decompressed "on its entire course."  

The foregoing evidence shows that the Veteran has been diagnosed with left C6 radiculopathy ever since active service which has been manifested by pain radiating into the left arm and left arm weakness and numbness.  He was initially diagnosed with this disorder during active service based on MRIs showing disc herniation and consequent nerve root compression.  Post-service medical evidence in the form of electrodiagnostic studies, MRI's, and most recently a surgical operation at VA in October 2007 confirmed the diagnosis of left cervical radiculopathy at C6 due to nerve root compression.  Given the probative evidence of a chronic disability in service and the post-service evidence showing that the Veteran has continued to have the same disability during the pendency of this claim, service connection for left cervical radiculopathy on a direct basis is granted.  See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67.  

The Board finds that service connection for radiculopathy of the right upper extremity is also warranted.  The July 1991 service treatment record shows that the Veteran had decreased power of the right upper extremity, although less severe than on the left side.  Moreover, a September 1991 MRI showed a large disc herniation at C5-6 which was worse on the left than the right, with root and minor spinal cord compression.  The fact that it was noted to be worse on the left than on the right indicates that the disk herniation also occurred on the right side, although to a lesser extent.  The post-service treatment records also show pathology on the right side associated with the Veteran's numbness and weakness of the right upper extremity.  Specifically, the August 1997 private MRI study showed significant posterior osteophyte formation centrally and bilaterally at C5-6 with impingement upon both neural foramina at this level.  It also showed posterior osteophyte formation of the right at C4-5, with significant narrowing of the right neural foramen.  The February 1998 VA EMG and nerve conduction study was interpreted as showing bilateral cervical polyradiculopathies, rather than just left cervical radiculopathy.  Moreover, the February 1999 and October 2000 VA MRI studies of the cervical spine showed some narrowing of the nerve root foramina on the right side at C5 and C6.  The October 2000 VA MRI report also states that the Veteran reported symptoms of right upper extremity radiculopathy.  Thus, the balance of the competent and probative evidence shows that the Veteran has had radiculopathy of the right upper extremity associated with his cervical degenerative disc disease ever since active service, albeit less severe than on the left side.  Any doubt on this issue is resolved in the Veteran's favor, and service connection for cervical radiculopathy of the right upper extremity is granted on a direct basis.  See 38 C.F.R. §§ 3.102, 3.303; Shedden, 381 F.3d at 1166-67.  

In sum, service connection for cervical radiculopathy of the left and right upper extremities is granted.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

B. Carpal Tunnel Syndrome

The preponderance of the evidence shows that the Veteran does not have carpal tunnel syndrome in either extremity.  

There are no diagnoses of carpal tunnel syndrome in the service treatment records or mention of numbness or tingling in the hands.  His upper extremities were evaluated as normal in the November 1994 retirement examination report. 

The private treatment records show that after his retirement from active service, the Veteran reported a two-month history of numbness in the arms and legs in August 1997.  The numbness was worse at the distal aspect of the extremities, especially in the hands, fingertips, and calves.  The numbness was worse in the morning and gradually improved throughout the day with activity.  The treating physician assessed peripheral neuropathy of all four extremities.  

An August 1997 private nerve conduction study and EMG was interpreted as showing a residual of a mild left ulnar sensory neuropathy localized to the left elbow as well as mild irritation of the left median sensory nerve at the left wrist without evidence of a full-blown nerve injury. 

A September 1997 private treatment record reflects that the Veteran reported waking up one morning in June 2007 with numbness in the hands and feet.  On examination, reflexes were decreased in the upper extremities and both ankles.  Strength and sensation were normal.  The treating physician, Dr. E.M., diagnosed carpal tunnel syndrome and prescribed splints for both wrists.  Later that month, the Veteran was again diagnosed with carpal tunnel syndrome by Dr. E.M. when he was seen for follow-up treatment.  Doctor E.M. noted that the Veteran had thenar atrophy and tingling in the hands when he flexed his wrists. 

In a February 1998 private treatment record, Dr. E.M. noted that the Veteran had peripheral neuropathy affecting the nerves in his upper and lower extremities.  While the Veteran had degenerative disc disease in his neck and low back, the physician did not think it would cause this kind of "stocking glove type of decreased sensation."  

A February 1998 VA EMG and nerve conduction study showed electrophysiological evidence of bilateral C4-5 and C5-6 cervical polyradiculopathies.  There was no evidence of other radiculopathy, plexography, polyneuropathy, or myopathy. 

In a March 1998 private treatment record, Dr. E.M. concluded that the Veteran did not have "any carpal tunnel syndrome" based on a review of the February 1998 VA EMG which was negative for neuropathy, plexography, or myopathy.  Doctor E.M. concluded that the Veteran had radiculopathy. 

An August 2001 private SSA consultation report authored by a physician reflects that an examination of the Veteran's hands showed no atrophy and no weakness of the hands, fingers, or arms.  Sensory testing of the upper extremities was negative.  After examining the Veteran and reviewing his prior EMG and MRI studies, the physician concluded that there was no definite sign of carpal tunnel syndrome in the record or on physical examination.  

An August 2003 VA examination report shows that the examiner reviewed the Veteran's past diagnoses of carpal tunnel syndrome, but that after reviewing the medical history and examining the Veteran, concluded that he had left C6-C7 compressive radiculopathy related to degenerative disc disease of the cervical spine.  The examiner did not diagnose carpal tunnel syndrome.

In an April 2005 VA examination report, the examiner noted that the Veteran had a history of carpal tunnel syndrome according to a previous EMG, as related by the Veteran, but that the report itself was not available to the examiner.  The Veteran described mild symptomatology.  There was no evidence of muscle atrophy or muscle weakness in the hands.  The examiner concluded that the Veteran's carpal tunnel syndrome was at least as likely as not related to service. 

The Veteran underwent a VA examination in August 2008 to assess whether he had carpal tunnel syndrome.  At the examination, the Veteran reported pain in his forearms and in his fingers and metacarpal phalangeal joints, which flared up primarily with typing.  He also reported decreased grip strength.  He did not report symptoms of carpal tunnel syndrome.  In this regard, there was no report of pain, numbness, or the distribution thereof indicative of radial, ulnar, or median nerve carpal tunnel syndrome.  On examination, the bilateral wrists appeared anatomically normal.  He had radial deviation of 20 degrees and ulnar deviation of 45 degrees.  Repeat dorsiflexion, palmar flexion, and radial and ulnar deviation of the wrists did not create pain, weakness, or fatigue.  He had no loss of strength or grip.  There was no indication of a Tinel sign.  His pulses were normal.  The examiner concluded based on this examination, the Veteran's reported history, and a review of an x-ray study of the bilateral wrists that there was no clinical evidence of carpal tunnel syndrome.  The examiner also found that the Veteran's reported symptoms were not consistent with carpal tunnel syndrome.  The examiner thought that the Veteran might have some "overuse syndrome" from typing.  

In the August 2012 VA examination report, the examiner found after reviewing the claims file and conducting a physical examination of the Veteran that he did not have complaints consistent with carpal tunnel syndrome and there were no clinical findings consistent with carpal tunnel syndrome in either extremity.  It was also noted that the Veteran did not have treatment or complaints of carpal tunnel syndrome after seeing Dr. E.M. in 1997, which is consistent with the evidence of record.  Indeed, as discussed above, Dr. E.M. had retracted this diagnosis and instead determined that the Veteran had radiculopathy. 

An August 2012 VA peripheral nerve examination report reflects that the Veteran did not have a peripheral nerve condition or peripheral neuropathy after a thorough neurological examination was performed of the upper extremities. 

The foregoing evidence strongly weighs against a finding that the Veteran has carpal tunnel syndrome or peripheral neuropathy of the upper extremities.  Although Dr. E.M. initially diagnosed carpal tunnel syndrome, he revised this diagnosis to radiculopathy following the February 1998 VA nerve conduction study and EMG.  Thus, his earlier diagnosis of carpal tunnel syndrome lacks probative value in light of his retraction of it following his review of additional clinical studies.  The April 2005 VA examiner's statement that the Veteran had carpal tunnel syndrome related to service is based solely on the Veteran's reported history without any clinical findings to support this diagnosis or other rationale for the examiner's conclusion.  Although the examiner referenced an earlier EMG, he noted that the EMG report was not actually available.  Thus, the examiner's diagnosis has little probative value or weight as it was based solely on the Veteran's reported history rather than on the examiner's own clinical findings, and is not otherwise supported by an explanation.  See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of lay history reported by the claimant, unenhanced by additional comment by the transcriber, does not become competent medical evidence simply because the transcriber is a medical professional); Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions); see also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). 

The August 2001 private SSA consultation examination report, as well as the August 2003 and August 2012 VA examination reports all confirm that the Veteran has not had carpal tunnel syndrome during the pendency of this claim.  These examination reports are based on a review of pertinent medical evidence, including electrodiagnostic testing results, as well as examinations of the Veteran and consideration of his reported symptoms.  They are also consistent with Dr. E.M.'s retraction of his initial diagnosis of carpal tunnel syndrome in favor of a diagnosis of radiculopathy.  Thus, they are highly probative on this issue and accorded more weight than the April 2005 VA examination report, which lacks any clinical findings or other explanation.

The Board has considered the Veteran's contention that he has carpal tunnel syndrome.  However, while the Veteran is competent to report his symptoms of numbness, pain, and tingling, as a lay person he has not demonstrated the medical expertise to render a competent opinion as to whether these symptoms are properly diagnosed as carpal tunnel syndrome.  Unlike more readily identifiable disorders, the diagnosis of carpal tunnel syndrome is too complex from a medical standpoint to be made based on lay observation alone.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309.  Indeed, the Veteran's private and VA treating providers have relied on detailed physical examinations, to include electrodiagnostic testing, to rule out this disorder.  Thus, the Veteran's contention that he has carpal tunnel syndrome is not competent and therefore lacks probative value.  See King, supra; Layno, 6 Vet. App. at 469.  The Board gives more weight to the findings of the medical doctors and examiners who concluded that the Veteran does not have carpal tunnel syndrome.  They have the medical expertise to make a competent determination in this regard, and this determination was consistently made by several medical professionals based on examinations of the Veteran, consideration of his reported symptoms, and a review of his medical records and the electrodiagnostic testing results. 

The Veteran also submitted  medical literature discussing the symptoms of carpal tunnel syndrome.  However, the information he submitted is not specific to him and is not accompanied by a medical opinion applying this information to the Veteran's case.  See Sacks v. West, 11 Vet. App. 314, 317 (1998).  The Board gives more weight to the findings of the medical professionals who actually examined the Veteran, reviewed his medical history and reported symptoms, and concluded that he does not have carpal tunnel syndrome.  Unlike the medical treatise submitted by the Veteran, these findings are specific to the Veteran's case and thus carry more weight and probative value than the treatise.  See id.

Because a preponderance of the competent and probative evidence shows that the Veteran has not had carpal tunnel syndrome during the pendency of this claim, service connection for this disorder cannot be granted.  See Shedden, 381 F.3d at 1166-67 (holding, in pertinent part, that service connection requires evidence of a current disability); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C.A. § 1110 and § 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for carpal tunnel syndrome of the left and right upper extremities is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

II. Increased Rating

The Veteran contends that he is entitled to an initial disability rating in excess of 20 percent for his service-connected low back disability.  For the reasons that follow, the Board concludes that an increased rating is not warranted.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2012).

In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  Further, under 38 C.F.R. § 4.45 (2012), consideration must also be given to weakened movement, excess fatigability and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint).  

Traumatic arthritis is to be rated as degenerative arthritis under DC 5003.  38 C.F.R. § 4.71a.  Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  See id.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion.  Id.  In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  If there are no incapacitating exacerbations, a 10 percent rating is assigned.  Id. 

In application of Diagnostic Code 5003, the Court has held that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion."  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59.  

With any form of arthritis, painful motion is an important factor of disability.  38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).  

In Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code.  The Court further explained that although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion.  See id.  Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating.  See id. at 43. 

Specific to disabilities of the spine, the current rating schedule provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243).  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.  The evaluation of intervertebral disc syndrome will be discussed below.  Under the General Rating Formula:

A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 

A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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.  

A 40 percent evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine.  

A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated.  

See id.  These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine.  Id.  This is because the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine."  68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2).  

Unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension."  Id., Note (5).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.

Under DC 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine 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 under 38 C.F.R. § 4.25 (2012).  38 C.F.R. § 4.71a, Note (6).  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks.  See 38 C.F.R. § 4.71a (DC 5243).  

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.  See 38 C.F.R. § 4.71a Note (1).

The Veteran submitted his service connection claim for a low back disability on March 1, 1995, from which the present appeal stems regarding the proper rating to be assigned.  During the pendency of this claim, the criteria for rating back disabilities in the VA Schedule for Rating Disabilities were revised effective September 23, 2002, and again effective September 26, 2003.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  However, the Board is not precluded from applying prior versions of the applicable diagnostic codes under 38 C.F.R. § 4.71a to the period on or after the effective dates of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here.  Therefore, the Board may evaluate the Veteran's low back disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would accord him the highest rating.

Under the previous criteria, DC 5292 provides for the assignment of a 20 percent evaluation for moderate limitation of motion of the lumbar spine.  A maximum 40 percent evaluation is assigned for severe limitation of motion.  38 C.F.R. § 4.71a (2003).  

Under old DC 5295, which pertains to lumbosacral strain, a 10 percent rating is assigned for characteristic pain on motion.  38 C.F.R. § 4.71a, DC 5295 (2003).  A 20 percent rating is warranted for muscle spasm on extreme forward bending, or loss of lateral spine motion, unilateral, in standing position.  Id.  A maximum disability rating of 40 percent is assigned for severe lumbosacral strain when there is listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  38 C.F.R. § 4.71a (2003). 

The words "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6 (2012).  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of the issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6.  Moreover, guidance can be obtained from the amended regulations.  In adopting specific ranges of motion to define what is normal, as discussed below, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer.  See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002).  Therefore, even though pre-2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984.  There is no inconsistency, then, in using the amended regulations pertaining to range of motion of the spine as guidance in rating spine disabilities under the old criteria.

Under old DC 5293, preoperative or postoperative intervertebral disc syndrome is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 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.  See 38 C.F.R. § 4.71a (2003).  Effective September 26, 2003, intervertebral disc syndrome was assigned a new diagnostic code number (5243), and the instruction with respect to the separate evaluation of neurologic and orthopedic manifestations was re-worded and moved to Note 1, following the General Rating Formula for Diseases and Injuries of the Spine.  The above-mentioned instruction was re-phrased to state that intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine 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 under section 4.25.  However, these revisions were intended to be clarifying and non-substantive in nature.  See Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509, 56,510 (Sept. 4, 2002) (indicating that the then-proposed amendment "would make editorial changes", but would not "represent any substantive change to the recently adopted evaluation criteria for intervertebral disc syndrome").  

Some of the Notes were inadvertently omitted when Diagnostic Code 5293 was re-published as Diagnostic Code 5243 in August 2003, but this error has since been corrected effective September 26, 2003, the date of the amendment.  See Schedule for Rating Disabilities; The Spine; Correction, 69 Fed. Reg. 32,449 (June 10, 2004)).  Thus, the omitted notes apply to DC 5243 as in effect since September 26, 2003. 

Because the September 26, 2003 amendment did not substantively change the criteria for rating intervertebral disc syndrome, but rather simply clarified that rating the disability's separate "chronic orthopedic and neurologic manifestations" is the same as rating it under the General Rating Formula, the Board finds that application of the version of DC 5293 in effect prior to September 26, 2003 is the equivalent of applying current DC 5243. 

Turning to the evidence of record, at a May 1995 examination the Veteran complained of low back soreness with some extension into the right buttock.  He said the pain was intermittent and occurred when he walked or ran.  The pain was relieved by squatting and flexing his back.  A physical examination was "essentially negative" with no muscle spasm seen. 

An October 1995 private MRI revealed soft tissue at the L5-S1 level within the anterior spinal canal in the midline extending into both right and left paracentral regions indicating a moderate sized (5 mm) posterior disc herniation.  

In a February 1996 VA examination report, the examiner found that range of motion of the lumbar spine was limited by 10 degrees.  Straight leg testing caused pain in the back radiating down the legs.  Sensation was intact in the lower extremities.  X-rays of the lumbar spine showed approximately 10 to 15 percent loss of disc height of the L5-S1 disk space.  The examiner diagnosed a herniated intervertebral disk at L5-S1 which was mild to moderate in nature. 

A September 1997 VA examination report reflects that the Veteran had pain in his back "from time to time."  He also reported numbness in his legs which was mostly located in the calf area.  The Veteran reported working at an office twenty-five hours per week doing filing and office chores.  On examination, forward flexion of the lumbar spine was to 80 degrees, extension to 15 degrees, and side to side bending to 15 degrees bilaterally.  The Veteran had some discomfort in the lower back at the extremes of flexion, but the pain did not go into his legs.  His motor function was 5/5 in the lower extremities, and a sensory examination was grossly normal.  There was no muscle atrophy.  The examiner concluded that the Veteran had degenerative disc disease at the L5-S1 level with mild bulging.  He did not have any motor radicular symptoms.  His low back disability appeared to be mild to moderate in severity depending on activity level.  

A March 1998 VA nerve conduction study and EMG showed electrophysiological evidence of L4-5 and L5-S1 lumbosacral radiculopathies which were considered mild based on the testing results.

An October 1998 VA treatment record states that the Veteran worked and studied full time.  He worked as a security guard and studied creative writing. 

At a September 1998 VA examination, the Veteran reported having lost multiple jobs due to low back pain.  He was then working as a data processor.  He described an aching pain across the lower aspect of the lumbar spine.  He reported intermittent exacerbations which caused him to miss work.  He did not have "true radicular symptoms," as he reported intermittent posterior buttock and proximal hamstring pain rather than pain involving both legs.  He denied a history of numbness or tingling in the lower extremities.  On examination, he walked with a normal gait.  Forward flexion of the lumbar spine was to 50 degrees, with 60 degrees being normal.  Extension of the back was to 10 degrees, with 25 degrees being normal.  Right side bending was to 20 degrees and left side bending was to 15 degrees, with 25 degrees being normal.  Internal and external rotation of the hips was normal.  No muscular spasm was noted.  No abnormalities were found on neurological examination.  Straight leg raising was negative bilaterally.  No atrophy was detected in either leg.  The examiner diagnosed degenerative disk disease of the lumbar spine which was moderate in nature.  The examiner opined that the Veteran's reported discomfort would not result in any functional loss and that his objective pathology did not support his subjective complaints.  The examiner did not believe that the low back disability caused weakened movement, excess fatigability, or incoordination.  No changes in the skin or muscular atrophy indicate disuse were found.  

A February 1999 VA MRI showed minimal degenerative disease of the lumbar spine, with no evidence of focal nerve root compression or thecal sac compression.

A March 1999 VA treatment record reflects that the Veteran reported low back pain recurring every four months.  He stated that his job made him rest for two to four weeks when this occurred.  He also reported numbness after sitting in the car for twenty minutes.  He further reported pain along both lower extremities.  The Veteran was employed doing data entry for eight hours per day.  He did not have symptoms when walking around but rather they occurred when he sat down after standing and vice versa.  On examination, there was no evidence of a neurologic deficit.   

A May 1999 VA treatment record shows that the Veteran reported that his back pain was worse when sitting or driving for about twenty minutes.  He had recently fallen and reinjured his back, and dropped out of school.  He did not seek treatment right away as the pain was "unbearable" and he did not have transportation. 

A June 1999 VA treatment record shows that the Veteran complained of severe low back pain.  He reported being unable to sit or stand for long periods of time.  On examination, there were no lower extremity findings.  The treating provider concluded that there were no MRI or physical examination findings to account for the Veteran's severe low back pain.

An October 2001 VA treatment record shows that the Veteran complained of aching low back pain with occasional radiation into the upper thighs, but no true radicular pain.  The Veteran stated that he could not work as a writer due to the pain from sitting for long periods of time.  He stated that he suffered from exacerbations of symptoms every three to four months which required him to be off of work for a week at a time. 

At a January 2002 VA examination, the Veteran described a constant aching pain in the lower lumbar region. He stated that the pain increased with extension.  In the morning he had occasional circumferential stocking type numbness in the bilateral legs when he lied on his back.  He reported an inability to bend, stoop, or lift due to back pain.  He said he experienced numbness and tingling in both legs when he lied down.  On examination, the Veteran walked with a slow, non-antalgic gait.  He had "good" forward flexion of the spine to 50 degrees; extension was to 10 degrees with complaints of discomfort; and lateral bending was to 15 degrees to the left and right.  Straight leg raising caused back and bilateral hamstring pain.  Strength and sensory evaluations were otherwise unremarkable.  The impression was mild degenerative disc disease of the lumbar spine and deconditioning.  The examiner stated that the Veteran suffered from lumbar spine strain superimposed on mild degenerative disc disease.  The examiner could find no evidence to suggest any chronic radicular symptoms.  He suggested that the veteran's limited range of motion was likely due to deconditioning, which also resulted in weakened movement, excess fatigability, and poor endurance.  Functional loss due to the deconditioning would be expected.  The examiner concluded that there was little objective evidence to support the Veteran's subjective complaints. 

At an April 2005 VA examination, the veteran reported daily flare-ups of back pain.  Especially bad flare-ups occurred every other month, which lasted several days to weeks.  He said prolonged standing or sitting exacerbated his condition.  He complained of residual numbness in his lower extremities.  Prolonged driving aggravated the numbness in his legs.  He stated that he used a cane for long distances.  He was able to walk one and a half miles slowly without pain.  The veteran reported that he was capable of doing his activities of daily living without significant limitations.  He worked as a security guard in which capacity he mostly sat.  He reported feeling comfortable working in this position.  On examination, forward flexion of the lumbar spine was to 60 degrees with pain starting at 40 degrees; extension was to 20 degrees; and lateral flexion and rotation were to 20 degrees bilaterally.  There was some evidence of muscle spasm.  There was no reverse scoliosis, kyphosis, or scoliosis.  Sensory examination was within normal limits.  Deep tendon reflexes were normal.  Muscle strength was five out of five throughout.  The diagnosis was history of a herniated disc at the lumbar spine.  

The examiner concluded that the Veteran's low back disability involved only the joint structures with mild evidence of the muscle presenting spasm.  He found no nerve involvement or radiculopathy.  He further noted that there was no evidence of incoordination, weak movements, or excess fatigability with regard to the Veteran's low back.  With regard to the Veteran's subjective complaints of pain, the examiner stated that the Veteran had limited range of motion and muscle spasm, but that there was no evidence of disuse or functional impairment due to the pain.  He opined that the low back disability might be additionally limited by pain to a moderate degree during flare-ups following repetitive use. 

A March 2007 VA treatment record shows that the Veteran reported that while walking he felt pain in the lumbar spine and his legs became numb and gave way, causing him to fall to the ground.  The day before he had been sitting in a recliner and felt the same pain in his back when he went to raise the foot piece.  His legs went numb for five minutes.  He believed these symptoms stemmed from an injury at work which occurred in February 2007 when a chair he was sitting in broke.  

A June 2007 VA treatment record reflects that the Veteran reported sharp back pain, and that he had five episodes of such pain since he fell in March 2007.  He stated that the pain went down his legs. 

A September 2007 private worker's compensation examination report reflects that the Veteran had low back pain that was a 3 or 4 in severity on a scale of 1 to 10, with 1 being no pain and 10 being extreme pain.  The pain was intermittent in nature and made worse by sitting, standing, stooping, and bending.  It was noted that the Veteran walked into the examination room with a limp to the right, but was able to sit comfortably throughout the examination.  On examination, palpation of the lumbar spine revealed tenderness bilaterally as well as para-vertebral muscle spasms.  Observed range of motion of the lumbar spine was within normal limits.  Sensation and motor testing of the spine and lower extremities was also within normal limits.  

A March 2008 VA neurosurgery note reflects that the Veteran reported "off and on again" lumbar pain.  He attributed it to a heavy gait he had to open and close as a security guard.  It was noted that an MRI showed "age appropriate desiccation and [a] minimal midline L5S1 [sic] annual bulge."  The treating neurosurgeon stated that it "would be hard to say that [the Veteran was having] much . . . symptoms from" the disk bulge.  On examination, the Veteran had normal motor power throughout the lower extremities as well as normal sensation.  The neurosurgeon noted that the Veteran was looking for another job and that there were no specific medical restrictions. 

In June 2008, the Veteran began a period of physical therapy at VA for his low back pain.  The June 2008 initial consultation report states that the Veteran had low back pain which occasionally radiated to the left lower extremity and left gluteal area.  The pain was a 4 or 5 out of 10 in severity.  On examination, the Veteran walked with an antalgic gait, with a limp to the right side.  Spasms were noted in the bilateral lumbar paraspinals, as well as limited range of motion.  He was issued a trial TENS unit and three or four physical therapy sessions were planned. 

At the August 2012 VA examination, the Veteran reported having "good days and bad days" with regard to his back pain.  Prolonged standing aggravated his back pain.  He was able to walk about 200 yards, but some days had difficulty walking at all.  Laying flat on his back caused numbness from the waist down.  He denied flare-ups impacting the functioning of his back.  On examination, forward flexion of the lumbar spine was to 65 degrees.  Extension was to 30 degrees.  Bilateral flexion and rotation were to 25 degrees.  There was no objective evidence of painful motion during range of motion testing.  There was no additional limitation of range of motion in any direction after three repetitions.  The examiner found that the Veteran did not have any functional loss or impairment of the thoracolumbar spine, to include due to limited or weakened movement, excess fatigability, incoordination, pain on movement, or other issues.  There was no localized tenderness or muscle spasms of the lumbar spine.  Muscle strength testing and a sensory examination of the bilateral lower extremities were normal.  Straight leg testing was negative bilaterally.  The Veteran did not have radicular pain or signs or symptoms of radiculopathy.  There were no other neurologic abnormalities associated with the lumbar spine.  The examiner noted that an MRI study did not show any nerve impingement from a bulging disc, and that there was "no obvious pathology to account" for the Veteran's reported numbness in the lower extremities when he lays down.  The Veteran used a cane regularly for walking.  The examiner concluded that the Veteran should be able to do light to sedentary work.  

A September 2012 VA general examination report states that the Veteran stopped working as a security guard in February 2007 due to a neck injury which led to surgery, presumably in reference to the October 2007 diskectomy discussed above.  He stated that his back and neck disabilities likely did not prevent him from performing sedentary work, but that he could not work due to other health problems. 

The Veteran's SSA records show that in March 2010 he was granted disability benefits effective March 1, 2008 with a primary diagnosis of "affective/mood disorders" and a secondary diagnosis of "disorders of the back."  In a February 2009 SSA function report, the Veteran stated that he spent his mornings shopping for food for his family, his afternoons cooking and doing laundry, and his evenings watching television.  In a June 2009 function report, the Veteran stated that he did not drive because his legs occasionally went numb.  He did laundry for two to three hours and light cleaning for twenty to thirty minutes.  He did not do yard work and no longer played golf. 

Based on a careful review of the foregoing evidence, the Board finds that an initial rating in excess of 20 percent is not warranted under the old or current rating criteria for the Veteran's low back disability.  

With regard to the old criteria, under DC 5292 a rating of 40 percent is assigned for severe limitation of motion of the lumbar spine.  The evidence of record does not show severe limitation of motion.  As discussed above, the current rating criteria with regard to range of motion can be used as guidance in determining whether the Veteran's limitation of motion is severe.  Under the General Rating Formula, a 40 percent rating requires limitation of forward flexion to 30 degrees or less, indicating that severe limitation of motion would be one third of normal flexion, which is 90 degrees.  See 38 C.F.R. § 4.71a, Plate V; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2).  Throughout the pendency of this appeal, the Veteran's forward flexion has always well-exceeded 30 degrees.  At worst it was limited to 50 degrees in the September 1998 and January 2002 VA examinations.  The April 2005 VA examination report states that pain began at 40 degrees, but that the Veteran was able to forward flex to 60 degrees.  The examiner further stated that the Veteran's pain did not cause any functional impairment.  Under Mitchell, 25 Vet. App. at 42-43, pain must actually affect some aspect of the normal working movements of the body to constitute functional impairment warranting a potentially higher rating.  Thus, as the Veteran has always had more than 50 percent of forward flexion, the Board finds that severe limitation of motion has not been shown.  

The Board also notes that with regard to combined range of motion, a rating in excess of 20 percent is not available under the current General Rating Formula for limitation in combined range of motion, and such a rating is only assigned on this basis when combined range of motion does not exceed 120 degrees.  Here, the evidence does not show combined range of motion limited to less than 120 degrees.  

Most significantly, no VA examiner or other medical professional who has evaluated the Veteran's low back disability has described it as severe or found that he had severe limitation of motion of the spine.  Rather, the Veteran's low back disability has consistently been characterized as moderate in nature.  Thus, a rating in excess of 20 percent is not warranted under DC 5292 for severe limitation of motion of the lumbar spine.  

Under old DC 5295, a rating of 40 percent is assigned for severe lumbosacral strain when there is listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  38 C.F.R. § 4.71a (2003). 

A rating of 40 percent under old DC 5295 is not warranted.  The Veteran's low back disability has never been characterized as severe by the examiners and medical professionals who have assessed his low back disability.  Rather, it has been characterized as mild to moderate in severity.  Moreover, the VA examiners and treating providers have repeatedly noted that the Veteran's subjective complaints were not consistent with his objective pathology.  In this regard, the September 1998 VA examiner stated that the Veteran's reported discomfort would not result in any functional loss and that his objective pathology did not support his subjective complaints.  In the June 1999 VA treatment record, the treating provider concluded that there were no MRI or physical examination findings to account for the Veteran's severe low back pain.  The January 2002 VA examiner also concluded that there was little objective evidence to support the Veteran's subjective complaints.  The April 2005 VA examiner observed that there was no evidence of disuse or functional impairment due to the pain.  Likewise, the August 2012 VA examiner found that the Veteran did not have any functional loss or impairment of the thoracolumbar spine, to include due to limited or weakened movement, excess fatigability, incoordination, pain on movement, or other issues.  

Thus, as the Veteran's low back disability has never been characterized as severe but rather as mild or moderate in nature, and as it has been repeatedly noted that his objective pathology is not severe enough to account for his reported symptoms and complaints, the Board finds that the Veteran's low back disability is not severe.  Accordingly, although the Veteran may have some of the symptoms associated with a 40 percent rating under DC 5295, including loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, his low back disability is not appropriately characterized as a severe and the criteria for a higher rating are not met or approximated.  Therefore, a 40 percent rating under DC 5295 for a severe lumbosacral strain may not be assigned.  

Under the current General Rating Formula, a rating of 40 percent is assigned for limitation of forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Ratings in excess of 40 percent under the General Rating Formula require the presence of unfavorable ankylosis.  See 38 C.F.R. § 4.71a.  As discussed above, the Veteran's forward flexion has not been limited to 30 degrees or less throughout the pendency of this claim.  Moreover, there is no evidence of record indicating that he has favorable or unfavorable ankylosis of the lumbar spine.  Therefore, a rating in excess of 20 percent is not warranted under the General Rating Formula.  

The Board has also considered whether the Veteran has additional disability of the spine beyond the recorded range of motion measurements, to include due to flare-ups, weakened movement, painful movement, excess fatigability, or incoordination, such as after repetitive use of the spine.  See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 206-07.  The 20 percent rating currently assigned already compensates the Veteran for functional impairment of the spine.  His range of motion measurements do not exceed the criteria for a 20 percent rating under the General Rating Formula even after repeated use.  Although he has reported flare-ups requiring him to take time off of work, the VA and private treatment records spanning a period of time from 1995 to 2012 are devoid of any mention that the Veteran had to miss work due to flare-ups of low back pain.  He did injure himself at work in 2007 due to a fall, and has not worked since that time.  However, the evidence shows that the injury principally involved his cervical spine, for which he underwent surgery in October 2007, and that he has looked for work since that time.  Further, as discussed above, VA examiners and treating providers have repeatedly found that the Veteran's objective pathology is not consistent with the Veteran's subjective complaints, and that there was no evidence of additional functional impairment due to pain, incoordination, or excess fatigability.  The January 2002 VA examiner merely found that the Veteran had weakness, fatigability, and lack of endurance due to deconditioning (i.e. lack of physical activity) rather than due to disability or objective pathology.  In light of this evidence, the Board does not find it credible that the Veteran has had to miss work due to his low back pain or that his low back disability is more severe than the objective findings set forth in multiple VA examination reports.  Rather, throughout the pendency of this appeal the overall level of disability portrayed by the objective findings in the treatment records and examination reports does not meet the criteria for a rating in excess of 20 percent based on limitation of motion or functional impairment, taking reported flare-ups and repeated use into consideration.  As such, a higher rating is not warranted under the DeLuca criteria.

The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). 

There is no evidence of neurologic abnormalities associated with the Veteran's low back disability.  MRI studies of the lumbar spine have shown a disc bulge at L5-S1, but no nerve impingement.  Moreover, the VA examiners and treating providers have conducted neurological examinations of the Veteran and reviewed the diagnostic imaging studies, and found no evidence of neurologic abnormalities.  The March 1998 VA nerve conduction study and EMG did show electrophysiological evidence of L4-5 and L5-S1 lumbosacral radiculopathies which were considered mild.  However, the VA examiners who reviewed the claims file, including the March 1998 VA electrodiagnostic testing, and conducted neurological examinations of the Veteran explicitly found no neurological abnormalities associated with his low back disability.  Sensory and motor examinations of his lower extremities have been consistently normal.  Because these findings were made several times by different VA examiners and treating providers over the course of this claim, and were based on a review of the Veteran's medical history and examinations of the Veteran, the Board assigns them more weight than the one-time diagnosis of lumbosacral radiculopathy in the March 1998 VA nerve conduction study and EMG report.  The interpreter of that report did not have the benefit of the Veteran's entire medical history showing no neurologic problems associated with his low back disability, including MRI studies showing no nerve root impingement.  Indeed, the March 2008 VA neurosurgery consultation report shows that a neurosurgeon reviewed an MRI and found that the Veteran would essentially have no symptoms from the disc bulge and that a neurological examination was normal.  Thus, the preponderance of the competent evidence weighs against a finding that the Veteran has any neurologic abnormalities associated with his low back disability.  Thus, one or more separate ratings for associated neurologic abnormalities is not warranted.

Finally, a rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 38 C.F.R. § 4.71a, DC 5243.  There is no evidence showing that the Veteran has been prescribed bed rest by a physician for his low back disability at any point during the pendency of this claim.  The Board also does not find it credible that the Veteran had to miss work while he was employed due to his low back disability, for the reasons discussed above.  Thus, a rating in excess of 20 percent is not warranted for intervertebral disc syndrome on this basis.  See id.

The Board has considered the February 2010 SSA decision awarding disability benefits with a primary diagnosis of psychological disorders and a secondary diagnosis of disorders of the spine, effective March 2008.  The decision of an administrative law judge at SSA cannot be ignored, and to the extent its conclusions are not accepted, reasons or bases should be given therefor.  Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992).  Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  In this case, the Board does not find the February 2010 SSA decision to be probative with regard to the evaluation of the Veteran's low back disability.  In the first place, SSA disability benefits were awarded primarily for his psychiatric disorder.  Moreover, the secondary diagnosis does not differentiate between the Veteran's low back and cervical spine disabilities.  Indeed, the evidence of record shows that the Veteran discontinued working primarily due to his cervical spine disability, for which he underwent a diskectomy at VA in October 2007.  Moreover, the discussion in the decision itself does not make any mention of the Veteran's low back disability.  Rather, it only mentions his cervical spine disability and other, non-service connected disorders.  Thus, it does not appear that SSA granted disability benefits based on the Veteran's low back disability.  

Most persuasive are the findings of the VA examiners with regard to functional impairment caused by the Veteran's low back disability.  The April 2005 VA examiner stated that there was no evidence of functional impairment due to the pain.  The neurosurgeon stated in the March 2008 VA treatment record that the Veteran was looking for another job and that there were no specific medical restrictions.  The September 2012 VA examiner concluded that the Veteran should be able to do light to sedentary work.  Significantly, the Veteran himself stated at the September 2012 VA general examination that his disabilities of the spine did not prevent him from doing sedentary work.  

Thus, the February 2010 SSA decision does not show that the criteria for a higher rating under the schedular criteria have been met.

The Board has considered the Veteran's reported functional impairment and physical pain, as well as his complaints of intermittent numbness from the waist down.  While the Veteran is competent to report his subjective symptoms, the Board accords more weight to the objective findings of the VA examiners, who have repeatedly found no pathology to account for his reported numbness of the lower extremities or for his other subjective complaints.  The objective findings show that the Veteran's low back disability most closely approximates the criteria for a 20 percent rating. 

For the same reason, although the Veteran has been noted to walk with a limp and use a cane, the VA examiners and treating providers found that the Veteran's objective pathology did not support his subjective symptoms.  VA examiners and treating providers are medical professionals who possess the necessary expertise to assess accurately the degree of impairment associated with the Veteran's low back disability, to include on the basis of reviewing the Veteran's medical history, conducting appropriate diagnostic testing, interpreting MRI's and x-ray studies, and performing a physical examination and generally observing the Veteran.  Therefore, the Board gives more weight to the findings of the VA examiners than to the Veteran's lay statements.  For the reasons discussed above, their objective clinical findings, as recorded in the examination reports, do not warrant an initial rating in excess of 20 percent.  

While the Veteran's low back disability may have fluctuated in severity to some extent during the pendency of this claim, there is no evidence showing that the criteria for a rating in excess of 20 percent has been met at any point since the Veteran's March 1995 service connection claim.  Thus, staged ratings are not appropriate for the relevant time frame.  See Fenderson, 12 Vet. App. at 126. 

The issue of entitlement to TDIU, which must be addressed in an increased rating claim when the claimant or the record raises the issue of unemployability related to the disability in question, will be discussed in the REMAND portion of this decision below.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); 38 C.F.R. §§ 3.340, 4.16 (2012).  

The Board has considered whether the Veteran's claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities 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 the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue 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.  38 C.F.R. § 3.321(b)(1).  

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry.  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  See id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  

Referral for extraschedular consideration is not warranted.  The Veteran's low back disability is manifested by symptoms and functional impairment expressly addressed by the rating criteria, including arthritis and disc disease, pain, spasms, and limited motion.  See 38 C.F.R. § 4.71a, General Rating Formula (providing, in pertinent part, for ratings based on limited motion and spasms, irrespective of the presence of pain and whether or not it radiates); see also 38 C.F.R. §§ 4.40, 4.45, and 4.59 (providing for at least a compensable rating for painful motion, as well as excess fatigability, weakness, and incoordination).  The Veteran does not have symptoms associated with his low back disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating.  See Thun, 22 Vet. App. at 115.  While he has reported numbness of the lower extremities, the competent and probative evidence of record shows that these symptoms are not correlated with any objective findings.  Moreover, the rating criteria specifically provide for separate ratings for associated neurologic abnormalities.  However, as discussed above, such have not been shown.  

With regard to the Veteran's functional impairment, including an antalgic gait, the use of a cane, and reported difficulties with prolonged standing and walking, bending, and lifting heavy objects, the Board finds that these are expected concomitants of a low back disability.  The schedular criteria do not directly address functional impairment apart from limited motion and an abnormal gait because they are predicated on objective clinical findings.  As discussed above, the VA examiners and treating providers have repeatedly found that the Veteran's objective pathology does not support his subjective complaints.  However, even if it did, his symptoms would fall squarely within the rating criteria, to include the diagnostic codes pertaining to associated neurologic abnormalities.  

Further, the VA examiners have not found the Veteran's low back disability to represent an exceptional or unusual disability picture.  As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes.  Rather, the disability must be "exceptional" or "unusual."  The Veteran has not described any functional impairment beyond what would reasonably be contemplated by the rating criteria.  For example, limited and painful motion as well as back spasms would be expected to cause difficulties with walking, bending, and lifting.  Indeed, the rating criteria specifically provide for a 20 percent rating for an abnormal gait due to muscle spasm or guarding.  The Veteran stated in the SSA function reports that he was able to shop, cook, do laundry, and light cleaning.  The March 2008 neurosurgery consultation report shows that the Veteran was looking for work and that a neurosurgeon found no medical restrictions in this regard.  The Veteran himself stated at the September 2012 VA general examination that he could likely do sedentary work.  Finally, the September 2012 VA spine examination states that the Veteran had no functional impairment due to his low back disability.  Thus, the rating criteria reasonably describe the Veteran's low back disability and consequent functional limitations.

Accordingly, a comparison of the Veteran's low back disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Therefore referral for extraschedular consideration is not warranted.  See id.

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a rating in excess of 20 percent for a low back disability is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 


ORDER

Service connection for cervical radiculopathy of the bilateral upper extremities is granted. 

Service connection for carpal tunnel syndrome of the bilateral upper extremities is denied. 

An initial rating in excess of 20 percent for a low back disability is denied. 




REMAND

The issue of entitlement to TDIU must be remanded for further development.  In this decision, the Board has granted service connection for cervical radiculopathy of the bilateral upper extremities.  These newly service-connected disabilities must be assigned initial disability ratings by the agency of original jurisdiction (AOJ) and then considered in the determination of entitlement to TDIU.  Moreover, the Veteran himself indicated in the October 2012 brief that he wishes this issue to be deferred pending the adjudication of other claims by the RO which are not on appeal at this time. 

The Board also notes that in its February 2011 remand, the Board instructed the AOJ to obtain a VA medical opinion on the overall impact of the Veteran's service-connected disabilities on his ability to work.  While opinions were provided with regard to the separate impacts of the Veteran's service-connected disabilities on the Veteran's occupational functioning, no opinion has yet been provided on their combined, overall effect in this regard.  Thus, on remand, after assigning initial ratings for the Veteran's cervical radiculopathy of the bilateral upper extremities, the AOJ should obtain such an opinion to ensure substantial compliance with the Board's remand directives.  See Stegall, 11 Vet. App. at 271; see also D'Aries, 22 Vet. App. at 105. 

Further, the Board finds that the Veteran has submitted a timely notice of disagreement (NOD) with respect to the initial evaluation of his service-connected cervical spine disability assigned in the August 1995 rating decision.  In this regard, although the Veteran initially only mentioned his low back disability in a September 1995 NOD, he later submitted a VA Form 9 in October 1995 in which he requested a local RO hearing with regard to the evaluation of his cervical spine disability and entitlement to service connection for left ear hearing loss.  He also requested that these issues be included in a statement of the case (SOC).  A January 1996 report of contact form states that the Veteran was willing to undergo a VA examination to evaluate his cervical spine disability rather than appear at a hearing.  He also withdrew his appeal regarding the hearing loss claim at this time.  In a June 1996 rating decision, a rating increase of 10 percent to 20 percent was granted for the Veteran's cervical spine disability and low back disability.  However, while a supplemental statement of the case (SSOC) was issued with regard to the low back disability, an SOC was never issued addressing the Veteran's cervical spine disability.  In a February 1999 NOD pertaining to an unrelated claim, the Veteran stated that his "appeal has always been aimed at an increase for the Degenerative Disc Disease at C5-C6" [sic], in addition to the evaluation of his low back disability.  

The Board finds that the Veteran's statement in the October 1995 VA Form 9 constituted a valid NOD with regard to his cervical spine disability, as he requested that it be addressed in an SOC, a document which is only issued when a NOD has been submitted.  See 38 C.F.R. § 20.200 (2012) (providing that an appeal consists of a timely filed NOD in writing and, after an SOC has been issued, a timely substantive appeal); see also 38 C.F.R. §§ 20.201 (2012) (providing, in pertinent part, that a NOD is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative action by the AOJ and a desire for appellate review).  Moreover, the Veteran's NOD was timely as it was received by VA within two months of the August 1995 rating decision to which it pertains.  See 38 C.F.R. § 20.302(a) (discussing time limits for filing NOD's).  While the RO issued another rating decision in June 1996 granting an increased rating for the cervical spine disability, this rating decision does not circumvent the specific regulatory requirement that an SOC be issued following submission of a valid and timely NOD.  See Jones v. Shinseki, 23 Vet. App. 122, 125 (2009) (holding that a subsequent RO decision, as opposed to a Board decision, cannot resolve a claim that had been placed in appellate status by virtue of a NOD; only a subsequent Board decision can resolve an appeal that was initiated but not completed); accord Jones v. Shinseki, 619 F. 3d 1368, 1373 (Fed. Cir. 2010) (holding that a claim is left pending in appellate status when a statement of the case (SOC) is not issued in response to a NOD, unless the Board denies an identical claim).  SOC's have their own distinct content designed to give the claimant a more in-depth understanding of why a claim was denied and, perhaps most pertinently in this case, inform the claimant of what next steps must be taken to perfect an appeal to the Board.  See 38 C.F.R. §§ 19.29, 19.30 (2012).  The fact that an increased rating for the cervical spine disability was granted in the June 2006 rating decision did not abrogate the Veteran's appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal).  The Veteran's February 1999 statement in the unrelated NOD, as well as subsequent statements, confirm that he has wished to continue this appeal. 

Accordingly, the appeal of the initial rating assigned the Veteran's cervical spine disability must be remanded so that the RO may provide the Veteran with an SOC on this issue.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92).  However, this claim will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.  See 38 C.F.R. §§ 20.200, 20.202; Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.

Finally, any recent VA treatment records should also be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with an SOC addressing the initial rating of his service-connected cervical spine disability.  The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board.  If a timely substantive appeal is not filed, the claim should not be certified to the Board.

2.  Make arrangements to obtain the Veteran's VA treatment records, dated since September 2012.

3.  Then, after assigning initial evaluations for the Veteran's service-connected cervical radiculopathy of the bilateral upper extremities, and after conducting any other development that may be warranted based on additional information or evidence received, to include further examination, obtain a VA medical opinion as to the overall or combined effect of the Veteran's service-connected disabilities on his ability to work.  In other words, separate opinions should not be rendered for separate disabilities, but rather one opinion must be provided as to the combined effect of all of the Veteran's service-connected disabilities on his occupational functioning, and specifically whether they are sufficiently severe as to prevent him from engaging in substantially gainful employment without regard to age or non-service connected disabilities.  The examiner must provide a rationale for his/her opinion.

4.  After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claim of entitlement to a TDIU on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other 

appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs