Citation Nr: 1303603 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 08-08 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating for cervical degenerative disc disease with right upper extremity radiculopathy in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter. 2. Entitlement to an initial disability rating for thoracic and lumbosacral degenerative disc disease in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter. 3. Entitlement to an initial disability rating in excess of 10 percent for right shoulder, status post pectoral muscle rupture repair with degenerative joint disease, involving Muscle Group II. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to February 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in pertinent part, granted service connection for the claims on appeal, each assigned at 10 percent disabling, effective March 1, 2007. In March 2011, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Denver, Colorado. A copy of the transcript is of record. In a July 2011 decision, the Board remanded the claims for additional development and adjudicative action. In an August 2012 rating decision, the RO increased the 10 percent disability ratings for the cervical and lumbar spine disabilities to 20 percent disabling, effective September 14, 2011. The Veteran was advised of the August 2012 rating decision, but did not express agreement with the decision or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the assigned 10 percent and 20 percent disability ratings are not the maximum benefits available for the service-connected cervical and lumbar spine disabilities, this appeal continues for the periods from March 1, 2007 to September 13, 2011 and from September 14, 2011 to the present. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to service connection for sleep disorder as secondary to the service-connected cervical spine, lumbar spine, and right shoulder disabilities has been raised by the record in the September 2011 VA examination report, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. Prior to September 14, 2011, the service-connected cervical degenerative disc disease with right upper extremity radiculopathy more nearly approximated a manifestation of functional limitation by painful motion and noncompensable right upper extremity radiculopathy. 3. As of September 14, 2011, the service-connected cervical degenerative disc disease with right upper extremity radiculopathy more nearly approximates a manifestation of limitation of forward flexion greater than 15 degrees but not greater than 30 degrees, a combined range of motion not greater than 170 degrees, muscle spasm severe enough to result in an abnormal spinal contour specifically loss of cervical lordosis, and noncompensable right upper extremity radiculopathy. 4. Prior to September 14, 2011, the service-connected thoracic and lumbosacral degenerative disc disease with left lower extremity radiculopathy more nearly approximated a manifestation of functional limitation by painful motion and noncompensable left lower extremity radiculopathy. 5. As of September 14, 2011, the service-connected thoracic and lumbosacral degenerative disc disease with left lower extremity radiculopathy more nearly approximates a manifestation of limitation of forward flexion greater than 30 degrees but not greater than 60 degrees, muscle spasm severe enough to result in an abnormal spinal contour specifically loss of normal lordosis, and noncompensable left lower extremity radiculopathy. 6. As of September 14, 2011, the service-connected right shoulder, status post pectoral muscle rupture repair with degenerative joint disease, involving Muscle Group II, more nearly approximates a manifestation of moderate pectoralis muscle disability and painful motion. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating for cervical degenerative disc disease with right upper extremity radiculopathy in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for an initial disability rating for thoracic and lumbosacral degenerative disc disease with left lower extremity radiculopathy in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). 3. The criteria for an initial disability rating in excess of 20 percent, but no higher, for right shoulder, status post pectoral muscle rupture repair with degenerative joint disease, involving Muscle Group II, has been met as of September 14, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5003, 4.73, Diagnostic Code 5302 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In addition, the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, a June 2008 letter also included the type of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. Although this notice was not issued before the April 2007 rating decision on appeal, the Veteran has not been prejudiced, as the claims were readjudicated in a September 2009 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board finds that the VCAA notice requirements have been satisfied by a November 2006 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records held by any federal agency. This letter also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA. The claim on appeal arises from the Veteran's disagreement with the initial disability ratings of 10 percent assigned after the grant of service connection. The courts have held, and VA's General Counsel has interpreted that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-03 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). See also 38 C.F.R. § 3.159(b)(3)(i) (there is no duty to provide VCAA notice upon receipt of a notice of disagreement). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In connection with the claims on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, private treatment records, March 2011 Board hearing transcript, statements from the Veteran, and December 2006 and September 2011 VA examination reports. Pursuant to the Board's July 2011 remand instructions, the RO arranged for a VA examination in September 2011 for the claims on appeal. The examination report reflects that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinions offered. Hence, the Board concludes that the September 2011 examination is probative, adequate, and substantially complied with the November 2009 remand instructions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). The RO also received and associated with the claims file in August 2011 treatment records from the Air Force Academy Hospital and readjudicated the issues on appeal in an August 2012 rating decision and August 2012 SSOC. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria In a May 2007 notice of disagreement, via a VA Form 21-4138, March 2008 Substantive appeal, via a VA Form 9, and at the March 2011 Board hearing, the Veteran essentially asserted that medical evidence shows he meets the next higher evaluation for the service-connected cervical spine, lumbar spine, and right shoulder disabilities. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Service-Connected Cervical and Lumbar Spine Disabilities Specifically, in a June 2008 statement, the Veteran enclosed results from May 2008 magnetic resonance imaging (MRI)s of the cervical and lumbar spines which he noted shows additional significant degeneration to warrant greater compensation. He further noted that as a result of these injuries, he has incurred life-style changes and is required to take medication for the rest of his life. In an August 2011 statement, via a VA Form 21-4138, the Veteran reported the back and neck pain has dramatically impacted his quality of life and limits things he can do and how long he can do them. Most recently, at the March 2011 Board hearing, the Veteran testified he still has muscle spasms in the neck and receives injections and takes medication for relief, range of motion in the neck is painful and has decreased in the last two years, he has constant pain in the neck, cannot really turn his head while driving, and has numbness in the right arm that runs down the back side and to the fingers which creates problems while typing. With regard to the low back, he regularly receives injections, has painful extension motion, stiffness in the morning, limited ability to drive for more than 1 hour and 20 minutes and stand for more than 30 minutes, and approximately over the last 18 months his left leg is beginning to get increasingly numb. The Veteran further noted a limited ability to perform activities with his children, to include dancing, sports, and bowling, pain sometimes affects his mood for which he will take Valium and go to bed, pain limits his ability to sleep for which he takes Ambien, and he cannot perform yard work, shoveling, or house cleaning. Pursuant to the rating criteria for the spine, the Veteran's service-connected cervical degenerative disc disease with right upper extremity radiculopathy is rated at 10 percent disabling for functional limitation by painful motion and right upper extremity radiculopathy as noncompensable from March 1, 2007 to September 13, 2011 and at 20 percent disabling for limitation of forward flexion greater than 15 degrees but not greater than 30 degrees as of September 14, 2011. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012) (degenerative arthritis of the spine, see also diagnostic code 5003). The Veteran's service-connected thoracic and lumbosacral degenerative disc disease with left lower extremity radiculopathy is also rated at 10 percent disabling for functional limitation by painful motion and left lower extremity radiculopathy as noncompensable from March 1, 2007 to September 13, 2011 and at 20 percent disabling for limitation of forward flexion greater than 30 degrees but not greater than 60 degrees as of September 14, 2011. Id. Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint (including the ankle and the knee) or group of minor joints affected by limitation of motion to be combined not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). A. Rating the Cervical Spine Disability The rating criteria provides a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of its height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). After a full review of the record, including the present level of disability and current lay and medical findings from March 1, 2007 to September 13, 2011, the Board concludes that an initial evaluation in excess of 10 percent for the service-connected cervical spine disability is not warranted under Diagnostic Code 5242. The evidence of record prior to September 14, 2011 shows the service-connected cervical spine disability more nearly approximated a manifestation of functional limitation by painful motion and noncompensable right upper extremity radiculopathy for the currently assigned 10 percent disability rating. Specifically, VA outpatient and private treatment records show the Veteran's ongoing complaints of and treatment for neck pain, as well as mild tenderness to palpation on the distal cervical spine. His gait and stance was normal, as documented in April 2008, October 2008, June 2009, and February 2011. Next, after a full review of the record, including the present level of disability and current lay and medical findings as of September 14, 2011, the Board concludes that an initial evaluation in excess of 20 percent for the service-connected cervical spine disability is not warranted under Diagnostic Code 5242. As of September 14, 2011, the evidence of record, as discussed below, shows the service-connected cervical spine disability more nearly approximates a manifestation of limitation of forward flexion greater than 15 degrees but not greater than 30 degrees, a combined range of motion not greater than 170 degrees, muscle spasm severe enough to result in an abnormal spinal contour specifically loss of cervical lordosis, and noncompensable right upper extremity radiculopathy. At the September 2011 VA examination, the Veteran reported his cervical spine symptoms include stiffness and spasms three times a week lasting for a day at a time, for which he takes Valium and limits physical activity, and his most recent injection occurred in March 2011 which only provided 10 percent relief of pain for a few days. Upon clinical evaluation at the VA examination, the Veteran exhibited a moderate amount of bilateral lower cervical paraspinal muscle spasm significant enough to alter spinal contour causing loss of normal cervical lordosis but not to alter gait. There was tenderness to palpation bilaterally over the lower cervical paraspinal musculature. Range of motion testing revealed flexion to 20 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, right rotation to 20 degrees, and left rotation to 30 degrees all with pain at the end of the range. The X-ray impression was of degenerative disc disease and degenerative joint disease of the cervical spine. The VA examiner also noted no objective findings of scoliosis, guarding, or ankylosis as the Veteran ambulates with a normal gait without an assistive device, he is able to walk on heels and toes without difficulty, tandem gait is normal, and Veteran had no apparent difficulty moving about the examination room. The Veteran also reported he exercises on an elliptical machine for 20 minutes three times a week, weight gain in the recent years has decreased his physical activity tolerance, and is independent with activities of daily living, to include driving and using a riding lawnmower and snow plow. B. Rating the Lumbar Spine Disability The rating criteria provides a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Again, these ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). After a full review of the record, including the present level of disability and current lay and medical findings from March 1, 2007 to September 13, 2011, the Board concludes that an initial evaluation in excess of 10 percent for the service-connected lumbar spine disability is not warranted under Diagnostic Code 5242. The evidence of record prior to September 14, 2011 shows the service-connected lumbar spine disability more nearly approximated a manifestation of functional limitation by painful motion and noncompensable left lower extremity radiculopathy for the currently assigned 10 percent disability rating. VA outpatient and private treatment records revealed the Veteran's ongoing complaints of and treatment for chronic low back pain. An October 2008 record noted the Veteran's complaints of low back pain with activities, and a March 2011 record noted the Veteran continues to be debilitated in different arenas with chronic pain problems with degenerative disc disease. The March 2011 treating physician reported the Veteran has been able to do much less as far as his ability to be up and have normal activities, and the Veteran can only stand for about 30 minutes at a time and is slightly better when he is moving around. MRI results of the lumbar spine revealed no fractures or subluxations in May 2008, normal lordosis in January 2009, normal appearance and alignment with scattered small benign hemangiomas in February 2009, and normal vertebral body height and alignment in March 2011. Moreover, the Veteran's gait and stance was normal, as documented in April 2008, October 2008, June 2009, February 2011, and April 2011. An April 2008 record also documented the thoracolumbar spine showed no abnormalities or vertebral or paraspinal tenderness to palpation. Next, after a full review of the record, including the present level of disability and current lay and medical findings as of September 14, 2011, the Board concludes that an initial evaluation in excess of 20 percent for the service-connected lumbar spine disability is not warranted under Diagnostic Code 5242. As of September 14, 2011, the evidence of record, as discussed below, shows the service-connected lumbar spine disability more nearly approximates a manifestation of limitation of forward flexion greater than 30 degrees but not greater than 60 degrees, muscle spasm severe enough to result in an abnormal spinal contour specifically loss of normal lordosis, and noncompensable left lower extremity radiculopathy. At the September 2011 VA examination, the Veteran reported his spine symptoms include stiffness and spasms flare three times a week lasting for a day at a time, for which he takes Valium and limits physical activity, and his most recent injection occurred in March 2011 which only provided 10 percent relief of pain for a few days. The Veteran also noted having constant middle and low back pain which worsens with any bending and lifting below the waist level. Upon clinical evaluation at the VA examination, the Veteran exhibited symmetric and moderate bilateral lower lumbar paraspinal muscle spasm significant to alter spinal contour causing loss of normal lordosis but not to alter gait. There was tenderness to palpation over the L4 and L5 spinous processes, at the lumbosacral junction, and bilaterally over the lower lumbar paraspinal musculature. Range of motion testing revealed flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 25 degrees all with pain at the end of the ranges. X-ray results revealed an impression of mild wedging of mid thoracic vertebra, chronicity not known and no evidence of disk disease. The Veteran was diagnosed with degenerative joint disease of the thoracic spine and degenerative disc disease and degenerative joint disease of the lumbosacral spine. The VA examiner also noted no objective findings of scoliosis, guarding, or ankylosis as the Veteran ambulates with a normal gait without assistive device, is able to walk on heels and toes without difficulty, tandem gait is normal, and Veteran had not apparent difficulty moving about the examination room. The Veteran also reported he exercises on an elliptical machine for 20 minutes three times a week, weight gain in the recent years has decreased his physical activity tolerance, and is independent with activities of daily living, to include driving and using a riding lawnmower and snow plow. C. Additional Rating Considerations The Board finds that a higher rating for the service-connected cervical spine and lumbar spine disabilities prior to September 14, 2011 and thereafter is not warranted under Diagnostic Code 5243 as the clinical evidence of record does not show the Veteran has been diagnosed with intervertebral disc syndrome based on incapacitating episodes. In fact, the September 2011 VA examiner noted the Veteran's clinical history did not include incapacitating episodes requiring physician-ordered strict bed rest during the past year. Next, the Board finds that a separate compensable disability rating for the service-connected cervical spine and lumbar spine disabilities prior to September 14, 2011 and thereafter is not warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). As noted above, the Veteran testified at the March 2011 Board hearing that he has numbness in the right arm that runs down the back side and to the fingers. The Board also acknowledges that May 2008 VA outpatient MRI results of the cervical spine noted the Veteran's clinical history included chronic neck pain for years with paresthesias to the right upper extremity. In an October 2008 private treatment record, the Veteran primarily complained of neck pain with some occasional numbness in the right arm and right hand. A February 2009 VA outpatient MRI results of the lumbar spine noted the Veteran's history to include his report of hearing a new pop with pain the back which now radiates down the left leg, usually the right in the past. Pursuant to a November 2010 private session, his diagnoses included cervical degenerative disc disease with radiculopathy and lumbar degenerative disc disease with radiculopathy. The Veteran described the cervical radicular symptoms to the hands as greater on the right than left and lumbar pain radiating to the feet as greater on the right than the left. However, findings from clinical evaluation of the neurological system revealed normal touch, pin, vibratory, and proprioception sensations, and evaluation of the upper and lower extremity musculoskeletal system showed full and symmetric muscle strength and normal muscle tone without atrophy or abnormal movements. A March 2011 private treatment record noted straight leg raise is positive bilaterally with reproduction of low back pain. The Veteran also informed the September 2011 VA examiner of intermittent pain, numbness, and tingling radiating from the right neck into the right shoulder, arm, and lateral forearm, particularly when driving and reaching forward, and symptoms go away within minutes after changes position. The Veteran also reported he recently has developed numbness and tingling of the left posterior thigh, which is intermittent and not as bad as the right side. Nevertheless, the Veteran denied loss of bowel or bladder control or recent change in bowel or bladder function and denied experiencing any "saddle-area" anesthesia/numbness. Upon clinical evaluation the examiner noted there was no atrophy of the upper and lower extremity musculature, concluded there is presently no objective evidence of cervical radiculopathy as the Veteran has normal upper extremity deep tendon reflexes, sensation, and muscular strength on physical examination, as well as no objective evidence of thoracic radiculopathy as left straight leg raise test results were negative. The Board further notes that in the August 2012 rating decision, the RO granted a separate initial disability rating for left lower extremity radiculopathy at 20 percent, effective September 14, 2011. Moreover, the Board finds that the evidentiary record, to include the Veteran's reported symptomatology, does not demonstrate additional functional impairment beyond painful motion contemplated in the initially assigned 10 percent and 20 percent disability ratings prior to September 14, 2011 and thereafter. In fact, at the September 2011 VA examination, the Veteran reported constant neck pain which worsens with turning from side-to-side and looking up, and stiffness and pain contributes to fatigability and lack of endurance. However, the VA examiner noted the Veteran does not report weakness associated with neck symptoms. After repetitive testing, the examiner noted no objective findings of additional loss of range of motion for the cervical spine due to painful motion, weakness, impaired endurance, incoordination, or instability. See 38 C.F.R. § 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. at 205. With regard to the lumbar spine disability, the Veteran informed the September 2011 VA examiner that stiffness and pain contributes to fatigability and lack of endurance and that he is limited due to the back from standing for 20 minutes, sitting for one hour, and walking for one hour. However, the examiner noted the Veteran does not report weakness associated with back symptoms, and after repetitive testing, the examiner noted no objective findings of additional loss of range of motion for the thoracic or lumbar spine due to painful motion, weakness, impaired endurance, incoordination, or instability. Id. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an evaluation higher than the 10 percent and 20 percent disability ratings currently assigned for the cervical and lumbar spine disabilities prior to September 14, 2011 and thereafter. Fully considering the lay and medical evidence, prior to September 14, 2011, the reported symptomatology, to include functional limitation by painful motion and right upper and left lower extremities as noncompensable, more closely approximates a manifestation of the currently assigned 10 percent disability ratings under Diagnostic Code 5242 and DeLuca, 8 Vet. App. at 202. The lay and medical symptomatology does not more closely approximate a manifestation of the rating criteria for the assignment of a higher disability rating. Fully considering the lay and medical evidence, as of September 14, 2011, the reported symptomatology, to include limitation of forward flexion of the cervical spine to 20 degrees and of the lumbar spine to 50 degrees, a combined range of the cervical spine to 130 degrees, muscle spasm severe enough to result in an abnormal spinal contour specifically reversed lordosis, and right upper and left lower extremities as noncompensable, more closely approximates a manifestation of the currently assigned 20 percent disability ratings under Diagnostic Code 5242 and DeLuca, 8 Vet. App. at 202. The lay and medical symptomatology does not more closely approximate a manifestation of the rating criteria for the assignment of a higher disability rating. Thus, a preponderance of the evidence is against an initial evaluation for the service-connected cervical and lumbar spine disabilities in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter. 38 C.F.R. §§ 4.3, 4.7. Service-Connected Right Shoulder Disability In the August 2011 statement, the Veteran also reported he had major surgery on his shoulder and chest, thus limiting his strength, range of motion, and circulation. Most recently, at the March 2011 Board hearing, the Veteran testified that the shoulder causes problems while driving. There is swelling from degeneration of the joint more so than the pectoral injury, and he avoids reaching up in the refrigerator with the right arm, and sleeping on the right side. He also noted the range of motion, the ability to move his arm is inhibited by both the scar tissue in the pectoralis and the shortened tendons. In addition, while typing his hand gets numb, he cannot wear a backpack on the right shoulder because there is no muscle left in the pectoralis anymore. Pursuant to the rating criteria for acute, subacute, or chronic diseases of the musculoskeletal system, the Veteran's service-connected right shoulder, status post pectoral muscle rupture repair with degenerative joint disease, involving Muscle Group II, is rated at 10 percent disabling for reduced and painful motion. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5003, 4.73, Diagnostic Code 5302 (2012). Diagnostic Code 5302 provides evaluations for a disability of Muscle Group II. The function of these muscles are as follows: depression of arm from vertical overhead to hanging at side (1, 2); downward rotation of scapula (3, 4); 1 and 2 act with Group III in forward and backward swing of arm. The muscle group includes extrinsic muscles of shoulder girdle; (1) Pectoralis major II (costosternal); (2) latissimus dorsi and teres major (teres major, although technically an intrinsic muscle, is included with latissimus dorsi); (3) pectoralis minor; (4) rhomboid. See 38 C.F.R. § 4.73, Diagnostic Code 5302. A slight injury warrants a noncompensable (0 percent) rating. Id. A moderate injury warrants a 20 percent rating. Id. 'Moderate' muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe injury warrants a 30 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5302. 'Moderately severe' muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe injury warrants a 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5302. 'Severe' muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. If present, the following are also signs of 'severe' muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). After a full review of the record, including the present level of disability and current lay and medical findings for the entire initial rating period, the Board concludes that an initial evaluation of 20 percent, but no higher, for the service-connected right shoulder disability is warranted under Diagnostic Codes 5302. As discussed below, the evidence of record shows the service-connected right shoulder disability more nearly approximates a manifestation of moderate pectoralis muscle disability and painful motion as of September 14, 2011. At the September 2011 VA examination, the Veteran reported unable to lift weights or "weight train" due to his chronic right shoulder condition and continues to experience symptoms of constant right shoulder pain, stiffness, tightness, and progressive weakness. He also complained of atrophy in the right pectoralis area. Following a review of the claims file and evaluation of the Veteran, the examiner noted objective findings of tenderness to palpation at the proximal humerus over the area of insertion of the pectoralis major tendon, tenderness to palpation over the distal one third of the pectoralis major muscle, and within the distal one third of the pectoralis major muscle there is a circular area of palpable muscle loss, consistent with history of ruptured muscle, with a diameter of 4 centimeters and a maximal depth of 1.25 centimeters. X-ray results revealed no degenerative changes, fracture, or dislocation but findings of three lucent lesions with sclerotic borders at the lateral proximal humerus were noted, which the examiner determined most likely reflect post-surgical changes related to surgical repair of the pectoralis major tear in 1989. The examiner concluded there is no radiographic evidence of right shoulder degenerative joint disease and diagnosed the Veteran with right pectoralis major muscle tear, status post surgical repair in 1989, with residuals of a surgical scar, muscle loss/defect of the pectoralis major, decreased range of motion, and post-surgical changes at the humerus. As reflected in the September 2011 VA examination report, the examiner commented on a scar located over the Veteran's lateral pectoralis major muscle. The Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not 'duplicative of or overlapping with the symptomatology' of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994), The September 2011 VA examiner described the scar that overlies Muscle Group II as deep, not limiting shoulder range of motion, and measuring 11 centimeters long by 1 centimeter wide. It was further noted the scar is normally pigmented, flexible, nonindurated, nonedematous, nontender, and nonadherent. As such, the evidence of record does not support a separate compensable rating for the Veteran's service-connected right shoulder disability based on the scar located on Muscle Group II under the diagnostic codes for a skin disability, as outlined below. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2012). The evidence of record does not show the Veteran's scar limits the right shoulder range of motion to warrant application of Diagnostic Code 7801, scars, other than head, face, or neck, that are deep or that cause limited motion; or Diagnostic Code 7805, scars, other, which are rated on limitation of function of the affected part. The scar is not 144 square inches or greater to warrant application of Diagnostic Code 7802, scars, other than head, face, or neck that are superficial and do not cause limitation motion. There is also no evidence that the scar is unstable or painful to warrant application of Diagnostic Code 7803, superficial, unstable scars or Diagnostic Code 7804, superficial, painful on examination scars. Pursuant to the Veteran's contentions, as noted above, regarding limitation of motion for the right shoulder, the Board has considered whether an initial disability rating in excess of the currently assigned 20 percent is warranted under for limitation of motion for the shoulder and arm. Diagnostic Code 5201 provides a 30 percent disability rating for limitation of motion of the major shoulder midway between side and shoulder level and a 40 percent disability rating for limitation of motion of the major shoulder to 25 degrees from side. 38 C.F.R. § 4.71a. Normal range of motion of the shoulder is flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2012). After a full review of the record, including the present level of disability and current lay and medical findings for the entire initial rating period, the Board concludes that an initial evaluation in excess of 20 percent for the service-connected right shoulder disability is not warranted under Diagnostic Code 5201. Review of the musculoskeletal system showed normal movement of all extremities, as documented in VA outpatient treatment records dated April 2008, June 2009, September 2010, February 2011 and April 2011. An October 2008 private treatment record noted that upper extremity range of motion was grossly normal, and the Veteran exhibited flexion to 110 degrees, extension to 40 degrees, abduction to 100 degrees, and internal and external rotation to 60 degrees at the September 2011 VA examination. Moreover, the Board finds that the evidentiary record, to include the Veteran's reported symptomatology, does not demonstrate additional functional impairment beyond painful motion contemplated in the currently assigned 20 percent disability rating. In fact, the Veteran denied to the September 2011 VA examiner as to having any locking or instability and reported experiencing a flare in right shoulder pain and stiffness. However, the examiner noted the Veteran does not use an assistive device for this condition, and after repetitive testing against resistance, the examiner noted no objective findings of additional functional impairment or loss of range of motion for the right shoulder due to painful motion, weakness, impaired endurance, incoordination, or instability, fatigability, or flare ups. See 38 C.F.R. § 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. at 205 The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an evaluation higher than the currently assigned 20 percent disability rating currently assigned for the right shoulder disability. Fully considering the lay and medical evidence for the entire initial rating period, the reported symptomatology, to include moderate pectoralis muscle disability and painful motion, more closely approximates a manifestation of the currently assigned 20 percent disability rating under Diagnostic Code 5302 and DeLuca, 8 Vet. App. at 202. The lay and medical symptomatology does not more closely approximate a manifestation of the rating criteria for the assignment of a higher disability rating. Thus, a preponderance of the evidence warrants an initial evaluation for the service-connected right shoulder disability of 20 percent, but no higher, as of September 14, 2011. 38 C.F.R. §§ 4.3, 4.7. Extra-Schedular Analysis Neither the Veteran nor the evidence of record raises the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected cervical spine, lumbar spine, and right shoulder disabilities, for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran is currently employed as noted by the September 2011 VA examination report which documented the Veteran is employed full time in a sedentary job in "business development" as a government contractor. Additionally, an extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the Board finds that the schedular rating criteria do not adequately contemplate and describe the symptoms and impairment caused by the service-connected cervical spine, lumbar spine, and right shoulder disabilities. Specifically, as discussed above, such symptoms and impairment beyond what is provided for higher ratings in the schedular rating criteria include life-style changes due to required continuous medication for the rest of his life for the spine disabilities, problems with driving, limited circulation and swelling in the right shoulder, sleep impairment due to pain, mood swings due to pain, limited ability to perform activities with his children to include dancing, sports, and bowling, as well as avoidance of sleeping on the right side, reaching up in the refrigerator with the right arm, wearing a backpack on the right side, and completing household chores such as yard work, shoveling, and cleaning. The Board notes that the issue of service connection for sleep disorder as secondary to the service-connected cervical spine, lumbar spine, and right shoulder disabilities, has been referred to the AOJ for initial adjudication. Nonetheless, the Board finds the Veteran's exceptional disability picture does not exhibit other related factors such as those provided by 38 C.F.R. § 3.321(b)(1) as "governing norms," to include marked interference with employment or frequent periods of hospitalization. In fact, while the Veteran reported at the September 2011 VA examination as to missing 4 days of work during the past year due to a combination of his neck and back conditions, the Board finds that the absence of 4 days in one year does not demonstrate marked interference with employment. Furthermore, the September 2011 VA examiner reported there has been no missed work during the past year due to the service-connected right shoulder disability, nor has the Veteran undergone periods of hospitalization in connection with the service-connected disabilities as evidenced by the VA outpatient and private treatment records. For these reasons, referral for extra-schedular consideration for the service-connected cervical spine, lumbar spine, and right shoulder disabilities is not required. ORDER An initial disability rating for cervical degenerative disc disease with right upper extremity radiculopathy in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter is denied. An initial disability rating for thoracic and lumbosacral degenerative disc disease with left lower extremity radiculopathy in excess of 10 percent prior to September 14, 2011 and in excess of 20 percent thereafter is denied. An initial disability rating in excess of 20 percent, but no higher, for right shoulder, status post pectoral muscle rupture repair with degenerative joint disease, involving Muscle Group II, is granted as of September 14, 2011. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs