Citation Nr: 1304559 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 04-14 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE 1. Entitlement to an initial rating greater than 10 percent prior to April 22, 2009, greater than 20 percent prior to October 5, 2011, and greater than 40 percent thereafter for lumbar radiculitis. 2. Entitlement to an initial rating greater than 20 percent prior to October 5, 2011, and greater than 30 percent thereafter for cervical spondylosis. 3. Entitlement to a disability rating greater than 10 percent for hepatitis C and hepatitis B. 4. Entitlement to service connection for obstructive sleep apnea. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from September 1997 to April 2002, including in the southwest Asia Theater of operations in the Persian Gulf War This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which granted, in pertinent part, the Veteran's claims of service connection for lumbar radiculitis and for cervical spondylosis, assigning separate 10 percent ratings effective April 20, 2002. The Veteran disagreed with this decision in September 2003. He perfected a timely appeal in February 2004. In November 2006, April 2009, and in July 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives as the Board directed the RO/AMC to schedule the Veteran for updated VA examinations to determine the nature and extent of his service-connected lumbar radiculitis and cervical spondylosis and these examinations occurred in October 2011. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an August 2010 rating decision, the RO assigned a higher initial 20 percent rating effective April 23, 2009, for the Veteran's service-connected lumbar radiculitis. In a September 2010 rating decision, the RO denied the Veteran's claims for a disability rating greater than 10 percent for hepatitis C and hepatitis B, entitlement to service connection for obstructive sleep apnea, and entitlement to a TDIU. The Veteran disagreed with this decision in August 2011. In a December 2012 rating decision, the RO assigned, in pertinent part, a higher initial 40 percent rating effective October 5, 2011, for the Veteran's service-connected lumbar radiculitis. The RO also assigned an initial 20 percent rating effective April 20, 2002, and an initial 30 percent rating effective October 5, 2011, for the Veteran's service-connected cervical spondylosis. Because the initial ratings assigned to the Veteran's service-connected lumbar radiculitis and cervical spondylosis are not the maximum ratings available for these disabilities, these claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Also, in the December 2012 rating decision, the RO granted service connection for peripheral neuropathy of the right and left upper extremities, with each extremity evaluated at 20 percent disabling, effective from May 12, 2005; and granted service connection for peripheral neuropathy of the right and left lower extremities, with each extremity evaluated at 10 percent disabling, effective from May 26, 2004. As no appeal has been initiated contesting either the level of disability or the effective date assigned for these discrete disabilities, they are not a part of the current appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has asserted that he is not employable by reason of his service-connected disabilities. As noted above, the RO adjudicated the Veteran's TDIU claim in September 2010 and he disagreed with this decision in August 2011. The Veteran's TDIU claim is addressed further in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the Veteran's TDIU claim, the issues of entitlement to a disability rating greater than 10 percent for hepatitis C and hepatitis B and entitlement to service connection for obstructive sleep apnea also are addressed in the REMAND portion of the decision below and are REMANDED to the RO/AMC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The evidence of record shows that, prior to April 22, 2009, the Veteran's service-connected lumbar radiculitis is manifested by, at worst, decreased forward flexion, tenderness over the L4, L5, and S1 spine and paraspinal muscles, and complaints of pain. 2. The evidence of record shows that, between April 22, 2009, and October 5, 2011, the Veteran's service-connected lumbar radiculitis is characterized by functional limitation with lifting, bending and stooping, and is manifested by, at worst, complaints of low back pain, forward flexion limited to 45 degrees without additional limitation of motion following repetitive range of motion testing. 3. The evidence of record shows that, on VA examination on October 5, 2011, the Veteran's service-connected lumbar radiculitis is manifested by, at worst, forward flexion limited to 30 degrees with objective evidence of painful motion beginning at 10 degrees and limited to 20 degrees following repetitive range of motion testing. 4. The evidence of record shows that, prior to October 5, 2011, the Veteran's service-connected cervical spondylosis (also variously characterized as a broad-based central disk protrusion at C5-6, degenerative disc disease at C3-4 and C6-7, and degenerative osteoarthritis) is manifested by, at worst, complaints of chronic neck pain, forward flexion limited to 35 degrees without pain or additional limitation of motion following repetitive range of motion testing, no localized spasm, or mild tenderness. 5. The evidence of record shows that, on VA examination on October 5, 2011, the Veteran's service-connected cervical spondylosis (also variously characterized as a broad-based central disk protrusion at C5-6, degenerative disc disease at C3-4 and C6-7, and degenerative osteoarthritis) is manifested by, at worst, forward flexion limited to 20 degrees with objective evidence of painful motion beginning at 10 degrees and additional limitation of motion following repetitive range of motion testing. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent prior to April 22, 2009, greater than 20 percent prior to October 5, 2011, and greater than 40 percent thereafter for lumbar radiculitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5295 (effective before September 26, 2003); 38 C.F.R. § 4.71a, DC 5237 (effective September 26, 2003). 2. The criteria for an initial rating greater than 20 percent prior to October 5, 2011, and greater than 30 percent thereafter for cervical spondylosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5290 (effective before September 26, 2003); 38 C.F.R. § 4.71a, DC 5003-5242 (effective September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's higher initial rating claims for lumbar radiculitis and for cervical spondylosis are "downstream" elements of the RO's grant of service connection for these disabilities in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In April 2003 and in April 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete these claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the April 2003 VCAA notice letter was issued prior to the currently appealed rating decision issued in June 2003; thus, this notice was timely. Because the Veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the notices provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board is aware of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in which the Court held that, for an increased-compensation claim, section § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Relying on the informal guidance from VA's Office of General Counsel (OGC) and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that Vazquez-Flores is not applicable. According to OGC, because this is an appeal from an initial rating decision, VCAA notice obligations are satisfied fully once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely NOD with respect to the initial rating or effective date assigned following the grant of service connection. The Veteran has not alleged that he received inadequate VCAA notice in this case. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding as to the notice requirements for downstream earlier effective date claims following the grant of service connection: "that where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). The Board concludes that, because there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no additional VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (finding VCAA notice not required where there is no reasonable possibility that additional development will aid the Veteran). To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the Veteran on the issues of service connection for lumbar radiculitis and for cervical spondylosis, and because the Veteran was fully informed of the evidence needed to substantiate his claims, the Board finds no prejudice to the Veteran in proceeding with the present decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the Court held 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 more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Veteran received appropriate Dingess notice in the April 2007 VCAA notice letter and in separate April 2009 correspondence from VA. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. The Veteran has been provided with VA examinations which address the current nature and severity of his service-connected lumbar radiculitis and cervical spondylosis. Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Higher Initial Rating Claims The Veteran contends that his service-connected lumbar radiculitis and cervical spondylosis are both more disabling than currently evaluated. He specifically contends that these disabilities require him to take significant amounts of over-the-counter medication for low back and neck pain on a daily basis and result in tremendous sleep difficulties due to low back and neck pain. Governing Law and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as in this case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected lumbar radiculitis currently is evaluated as 10 percent disabling effective April 20, 2002 (the day following the date of the Veteran's service discharge), as 20 percent disabling effective April 23, 2009, and as 40 percent disabling effective October 5, 2011. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(ii) (2002, 2012); Fenderson v. West, supra. The Veteran's service-connected cervical spondylosis currently is evaluated as 20 percent disabling effective April 20, 2002 (the day following the date of the Veteran's service discharge), and as 30 percent disabling effective October 5, 2011. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(ii) (2002, 2012); Fenderson v. West, supra. The Veteran filed his original claim for compensation benefits in March 2003. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, including the criteria for rating disabilities of the spine. Effective September 23, 2002, VA revised the criteria for rating intervertebral disc syndrome, before the date on which the instance claim was filed. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for rating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Disabilities and injuries of the spine are currently evaluated under 38 C.F.R. § 4.71a, DCs 5235 through 5243. The revised provisions of DC 5293 were also redesignated as DC 5243 for intervertebral disc syndrome, effective September 26, 2003. VA the criteria for evaluating the spine was amended once during this appeal. Thus, the Veteran is entitled to have his claims considered in light of both the former and revised schedular criteria to determine whether a higher disability rating is warranted (for each of the staged periods) for the lumbar and cervical spine disabilities. If the revised criteria (effective from September 26, 2003) are favorable to the claim, then such criteria can be applied only for the period from and after the effective date of the regulatory change. However, the Veteran does get the benefit of having the former criteria (in effect prior to September 26, 2003) applied for the period prior and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). With respect to the Veteran's service-connected lumbar radiculitis, the Board notes that, under DC 5295, a 10 percent rating was assigned for lumbosacral strain with characteristic pain on motion. A 20 percent rating was assigned for lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A maximum 40 percent rating was assigned under DC 5295 for severe lumbosacral strain with 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 symptoms with abnormal mobility on forced motion. See 38 C.F.R. § 4.71a, DC 5295 (effective prior to September 26, 2003). With respect to the Veteran's service-connected cervical spondylosis, the Board notes that, under DC 5290, a 20 percent rating was assigned for moderate limitation of motion of the cervical spine. A maximum 30 percent rating was assigned for severe limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a, DC 5290 (effective prior to September 26, 2003). Under DC 5003, degenerative arthritis established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. In the absence of limitation of motion, a 20 percent rating is assigned under DC 5003 with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Former DC 5293 (in effect from September 23, 2002, through September 25, 2003) provided that intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. A 10 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 week during the past 12 months. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned for incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5293 (effective from September 22, 2002, through September 25, 2003). Under both the former and revised rating criteria for IVDS, an incapacitating episode is a period of acute signs and symptoms due to IVDS which requires bed rest prescribed by a physician and treatment by a physician. Chronic orthopedic and neurologic manifestations means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly or nearly so. See 67 Fed. Reg. 54,345, 54,349 and Note (1) (codified at 38 C.F.R. § 4.71a , DC 5293 and Note (1) (2003)). Effective September 26, 2003, all rating criteria applicable to the diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended. See 68 Fed. Reg. 51,454 (August 27, 2003) codified at 38 C.F.R. § 4.71a, DC's 5235 to 5243 (2004). The amendment changed the diagnostic code numbers used for all spine disabilities and instituted the use of a General Rating Formula for diseases and injuries of the spine for the new DC's 5235 to 5243. The revised rating criteria provides that IVDS is to be evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based On Incapacitating Episodes, whichever method results in the higher evaluation. Under the revised rating criteria for IVDS based on incapacitating episodes, a 10 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 week during the past 12 months. A 40 percent rating is assigned for incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned for incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243 (2012). The Board also notes that, 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, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, 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 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. These ratings are assigned 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 generally 38 C.F.R. §§ 4.71a, DC's 5235-5242 (effective September 26, 2003). Note (1) to the General Rating Formula states that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment should be evaluated separately under an appropriate diagnostic code. See generally 38 C.F.R. §§ 4.71a, DC's 5235-5242, Note (1) (effective September 26, 2003). The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 . It also should be noted that use of terminology such as "severe" by VA examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Although the criteria under DCs 5290 through 5292 were less defined than the current criteria, guidance can be obtained from the amended regulations. In adopting specific ranges of motions to define what is normal, VA stated that the ranges of motions 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). In other words, even though the 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, and thus the Board can consider the current ranges of motion as guidance to rating spine disabilities under the old criteria. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, the lumbar vertebrae and the cervical vertebrae are considered groups of minor joints ratable on parity with major joints. 38 C.F.R. § 4.45 (2012). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating greater than 10 percent prior to April 22, 2009, greater than 20 percent prior to October 5, 2011, and greater than 40 percent thereafter for lumbar radiculitis. The Veteran has contended that his service-connected lumbar radiculitis has resulted in severe low back disability. The evidence of record does not support the Veteran's assertions, however. It shows instead that, prior to April 22, 2009, the Veteran's service-connected lumbar radiculitis was manifested by, at worst, decreased forward flexion and tenderness over the L4, L5, and S1 spine and paraspinal muscles, and complaints of pain. There is no indication of either muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position (i.e., a 20 percent rating under the former DC 5295) or forward flexion of the thoracolumbar spine between 30 and 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 (i.e., a 20 percent rating under the revised DC 5237) such that an initial rating greater than 10 percent is warranted prior to April 22, 2009, under either the former or revised rating criteria for evaluating lumbosacral strain. See 38 C.F.R. § 4.71a, DC 5295 (effective before September 26, 2003), currently 38 C.F.R. § 4.71a, DC 5237 (2012). The Veteran's service treatment records show complaints of and treatment for a variety of lumbosacral spine complaints, to include mechanical low back pain. The Veteran received a course of outpatient physical therapy beginning in February 2000 for his low back pain. He was placed on a temporary physical profile later in February 2000 for mechanical low back pain. Following outpatient treatment in March 2000, the assessment was sacroiliac joint irritation and mechanical low back pain probably due to poor mechanics and posture. A magnetic resonance imaging (MRI) scan of the lumbar spine taken in December 2000 showed no pathology to support his complaints. A Medical Board physical examination in November 2001 revealed mild scoliosis, lordosis, and sciatic symptoms, and numbness in the feet due to low back pain. The post-service evidence of record also does not support assigning an initial rating greater than 10 percent prior to April 22, 2009, for the Veteran's service-connected lumbar radiculitis. For example, on VA examination in May 2003, the Veteran's complaints included "low back pain and numbness in his left leg for 3 years. He states that this problem began after he injured his back moving some heavy furniture while on military duty." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. Physical examination of the lumbar spine showed forward flexion to 95 degrees, extension to 35 degrees, right and left lateral flexion to 40 degrees, and right and left rotation to 30 degrees "again limited by pain." X-rays of the lumbar spine were within normal limits. The diagnoses included lumbar radiculitis. On VA outpatient treatment in September 2003, it was noted that the Veteran "presents for vesting physical [and]...will be coming here for healthcare." The Veteran's complaints included lower back pain. Physical examination showed no spinal tenderness and back pain "elicited on external and internal rotation of bilateral legs." The assessment included low back pain. In statements on his March 2004 substantive appeal (VA Form 9), the Veteran stated, "I am taking 800 mg ibuprofen to reduce pain up to 6 times per day." He stated that he woke up every day with back pain and "it takes two to three hours to start my daily life." On VA outpatient treatment in May 2004, the Veteran's complaints included back pain which was "unchanged - still bothers [him] a lot." Physical examination showed he was in mild distress from low back pain and had a normal gait. The assessment included back pain. The Veteran was advised to use a non-steroidal anti-inflammatory agent (NSAID) and Flexeril as needed. In July 2004, the Veteran's complaints included low back pain which was "still present" and, although his medication helped his pain, his "pain returns." He reported a history of low back pain since 2000. He was able to ambulate although he still "at times still has numbness in legs" which was "on and off and not new." He denied any incontinence or leg shooting pain. The assessment included low back pain with a note that x-rays of the lumbar spine were normal. The Veteran was advised to continue taking ibuprofen and Flexeril because they "do provide symptom relief." In December 2004, the Veteran's complaints included chronic low back pain. Physical examination showed some paraspinal muscle spasm in the lumbar area and no tenderness over the vertebral column. The assessment included chronic back pain. In an Outpatient Note dated in September 2007 and included in the Veteran's VA outpatient treatment records, a VA clinician stated that the Veteran had chronic mid to low back pain "and he was reported injured" while on active service. This clinician also stated that the Veteran's current complaints included "spine pain and limitations of his functionality, which has not been improved as compared to 2 years ago." The Veteran received a course of VA outpatient physical therapy for his low back pain in 2008. In May 2008, the Veteran's complaints included low back pain. A history of pain "across his lower back" which radiated down both legs was noted. Objective examination of the low back showed tenderness over the L4, L5, and S1 spine and paraspinal muscles, decreased forward flexion, negative straight leg raising bilaterally, range of motion and muscle strength within normal limits in both lower extremities, and intact sensation. The assessment included chronic low back pain. The Veteran has not identified or submitted any evidence which demonstrates his entitlement to an initial rating greater than 10 percent prior to April 22, 2009, for his service-connected lumbar radiculitis. The record evidence demonstrates instead that the Veteran's service-connected lumbar radiculitis was manifested by, at worst, decreased forward flexion, tenderness over the L4, L5, and S1 spine and paraspinal muscles, and complaints of pain during this time period. He had a full range of motion on VA examination in May 2003 although there were complaints of pain on range of motion testing. Repeated x-rays of the lumbar spine taken during this time period were within normal limits. It appears that the 10 percent rating assigned to the Veteran's service-connected lumbar radiculitis prior to April 22, 2009, is based on his complaints of painful motion. See 38 C.F.R. § 4.71a, DC 5295 (effective before September 26, 2003), currently 38 C.F.R. § 4.71a, DC 5237 (2012). Hence, an initial rating greater than 10 percent prior to April 22, 2009, for the Veteran's service-connected lumbar radiculitis is not warranted. The Veteran also is not entitled to an initial rating greater than 20 percent between April 22, 2009, and October 5, 2011, for service-connected lumbar radiculitis. The evidence of record does not support the Veteran's assertions regarding the severity of his service-connected lumbar radiculitis during this time period. It shows instead that, between April 22, 2009, and October 5, 2011, the Veteran's service-connected lumbar radiculitis was manifested by, at worst, complaints of low back pain with radiation to the left lower extremity, forward flexion limited to 45 degrees without additional limitation of motion following repetitive range of motion testing, and functional limitation in lifting heavy weights, doing above shoulder activities, and frequent bending and stooping. For example, on VA examination on April 22, 2009, the Veteran's complaints included chronic low back pain with radiation to the left lower extremity. The Veteran reported that he had "developed low back pain while moving furniture." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran reported taking Flexeril 10 mg twice a day and Motrin 800 mg four times a day. There was no evidence of total physical incapacity due to flare-ups of low back pain in the previous 12 months. The Veteran was independent in his activities of daily living. "He swims three times a week up to 20 minutes." He denied any bowel, bladder, or constitutional symptoms. He was not using any cane, crutches, or assistive device although he used a lumbar brace. Physical examination of the thoracolumbar spine in April 2009 showed forward flexion to 45 degrees, extension to 10 degrees, lateral flexion to 15 degrees in both directions, rotation to 15 degrees in both directions, no pain on range of motion testing, no loss of motion following repetitive testing, no localized tenderness or spasm, no bowel or bladder dysfunction, and negative straight leg raising. An MRI of the lumbar spine taken in April 2005 was reviewed and showed bulging disk disease at L5-S1 and L4-L5. The VA examiner stated that, although the Veteran had limitations "in lifting heavy weight and doing above shoulder activities and frequent bending and stooping," there was no additional limitation of motion due to any of the DeLuca factors. The diagnoses included degenerative disc disease of the lumbar spine. On VA outpatient treatment in October 2009, the Veteran's complaints included worsening chronic low back pain. The Veteran reported that he had lost 30 pounds of weight recently. Physical examination showed a normal gait. The assessment included chronic back pain. The Veteran contended in statements on an October 2009 VA Form 21-4138 that his service-connected lumbar radiculitis rendered him unable to sleep more than 3-4 hours per night and required him to take painkillers daily. In a separate lay statement received at the RO in October 2009, K.S. stated that the Veteran woke up at least 3-4 times a night "complaining of severe pain in his lower back...that occurs when switching positions. He describes it to me as the same pain he experiences multiple times during the day." K.S. also stated that the Veteran experienced daytime fatigue and somnolence as a result of his sleep difficulties caused by his back pain. The Veteran has not identified or submitted any evidence which demonstrates his entitlement to an initial rating greater than 20 percent for his service-connected lumbar radiculitis between April 22, 2009, and October 5, 2011. The record evidence demonstrates instead that, during this time period, the Veteran's service-connected lumbar radiculitis was manifested by, at worst, complaints of low back pain with radiation to the left lower extremity, forward flexion limited to 45 degrees without additional limitation of motion following repetitive range of motion testing, and functional limitation in lifting heavy weights, doing above shoulder activities, and frequent bending and stooping. VA examination in April 2009 confirmed a limited range of motion in the thoracolumbar spine with forward flexion only to 45 degrees although there was no additional limitation of motion due to any of the DeLuca factors or following repetitive range of motion testing. The April 2009 VA examiner concluded that the Veteran had limitations "in lifting heavy weight and doing above shoulder activities and frequent bending and stooping" and diagnosed degenerative disc disease of the lumbar spine. It appears that the 20 percent rating assigned to the Veteran's service-connected lumbar radiculitis between April 22, 2009, and October 5, 2011 is based on his limited forward flexion to 45 degrees on VA examination and his continuing complaints of painful motion. See 38 C.F.R. § 4.71a, DC 5295 (effective before September 26, 2003), currently 38 C.F.R. § 4.71a, DC 5237 (2012). Hence, an initial rating greater than 20 percent between April 22, 2009, and October 5, 2011, for the Veteran's service-connected lumbar radiculitis is not warranted. The Veteran also is not entitled to an initial rating greater than 40 percent effective October 5, 2011, for service-connected lumbar radiculitis. The evidence of record does not support the Veteran's assertions regarding the severity of his service-connected lumbar radiculitis during this time period. It shows instead that, on VA examination on October 5, 2011, the Veteran's service-connected lumbar radiculitis was manifested by, at worst, forward flexion limited to 30 degrees with objective evidence of painful motion beginning at 10 degrees and limited to 20 degrees following repetitive range of motion testing and functional impairment due to pain on movement. At that examination, the Veteran complained of constant chronic low back pain and limitation with radiation to the left lower extremity since 1998. The Veteran denied that flare-ups impacted the function of his thoracolumbar spine. Range of motion testing showed forward flexion to 30 degrees with objective evidence of painful motion beginning at 10 degrees and limited to 20 degrees following repetitive range of motion testing, extension to 10 degrees with objective evidence of painful motion beginning at 5 degrees, lateral flexion to 10 degrees in both directions with objective evidence of painful motion beginning at 5 degrees, lateral rotation to 10 degrees in both directions with objective evidence of painful motion beginning at 5 degrees. There was additional limitation of motion of the thoracolumbar spine following repetitive testing. There also was functional impairment due to pain on movement but no localized tenderness, guarding, or muscle spasm in the thoracolumbar spine. Muscle strength was 5/5. Physical examination showed no muscle atrophy, normal sensation, negative straight leg raising bilaterally, moderate radicular pain in the left lower extremity, mild numbness of the left lower extremity, and left sciatic nerve radiculopathy, no IVDS, no arthritis on x-rays, and no vertebral fracture. The VA examiner stated that the Veteran "can only do sedentary work" due to his "constant pain limitation" in his back. This clinician also stated that there was no evidence of total physical incapacity due to back pain in the previous 12 months. The diagnosis was degenerative disc disease. The Veteran has not identified or submitted any evidence which demonstrates his entitlement to an initial rating greater than 40 percent effective October 5, 2011, for his service-connected lumbar radiculitis. The record evidence demonstrates instead that, during this time period, the Veteran's service-connected lumbar radiculitis was manifested by, at worst, forward flexion limited to 30 degrees with objective evidence of painful motion beginning at 10 degrees and limited to 20 degrees following repetitive range of motion testing and functional impairment due to pain on movement. As noted elsewhere, because a 40 percent rating is the maximum disability rating available under the former DC 5295, other DC's for evaluating spine disabilities must be considered in evaluating the Veteran's service-connected lumbar radiculitis effective October 5, 2011. The Board notes in this regard that the October 2011 VA examiner specifically found that IVDS was not present in the Veteran's thoracolumbar spine. There also was no finding of ankylosis in either the thoracolumbar spine or the entire spine at this VA examination. This examination showed instead that the Veteran's forward flexion was limited to 20 degrees following repetitive range of motion testing and with functional impairment due to pain and complaints of painful motion. It appears that the 40 percent rating assigned to the Veteran's service-connected lumbar radiculitis effective October 5, 2011, is based on his limited forward flexion to 20 degrees and his continuing complaints of painful motion. See 38 C.F.R. § 4.71a, DC 5295 (effective before September 26, 2003), currently 38 C.F.R. § 4.71a, DC 5237 (2012). Hence, an initial rating greater than 40 percent effective October 5, 2011, for the Veteran's service-connected lumbar radiculitis is not warranted. The Board also finds that the preponderance of the evidence is against the Veteran's claim for an initial rating greater than 20 percent prior to October 5, 2011, and greater than 30 percent thereafter for cervical spondylosis. The Veteran has contended that his service-connected cervical spondylosis has resulted in chronic debilitating neck pain. The evidence of record does not support the Veteran's assertions, however. It shows instead that, prior to October 5, 2011, the Veteran's service-connected cervical spondylosis was manifested by, at worst, complaints of chronic neck pain with radiation to the left upper extremity aggravated by frequent bending, stooping, and lifting heavy weight, forward flexion limited to 35 degrees without pain or additional limitation of motion following repetitive range of motion testing, no localized spasm, mild tenderness, a broad-based central disk protrusion at C5-6 and degenerative disc disease at C3-4 and C6-7, degenerative osteoarthritis, and cervical myelopathy manifested by left hand and arm weakness. Under DC 5290, prior to September 26, 2003, and DC 5242 thereafter, there is no indication in the record evidence of either severe limitation of motion of the cervical spine (i.e., a 30 percent rating under the former DC 5290) or forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine (i.e., a 30 percent rating under the revised DC 5242) such that an initial rating greater than 20 percent is warranted prior to October 5, 2011, under either the former or revised rating criteria for evaluating limitation of motion of the cervical spine. Id. The Veteran's service treatment records show complaints of and treatment for a variety of cervical spine complaints, to include neck pain. An MRI of the cervical spine taken in September 2001 showed C3-4 moderate stenosis with reversal or cervical lordosis and osteophytes, C4-5 minimal disc degenerative, C5-6 mild right neural foraminal stenosis, C6-7 left greater than right mild osteophytes with moderate neural foraminal stenosis. At the Veteran's Medical Board physical examination in November 2001, clinical evaluation showed reduced cervical mobility, diminished cervical range of motion, and cervical muscle spasm. The post-service evidence of record also does not support assigning an initial rating greater than 20 percent prior to October 5, 2011, for the Veteran's service-connected cervical spondylosis. For example, on VA examination in May 2003, the Veteran's complaints included "headaches for several years." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. Physical examination showed limitation of motion of the neck with flexion to 40 degrees, extension to 40 degrees, lateral bending to 40 degrees on the left "but reduced to 10 degrees on the right [and] limited because of pain," and rotation to 50 degrees to the left and to 0 degrees on the right "again markedly limited by pain." X-rays of the cervical spine showed mild to moderate degenerative disc disease at C3-4 and C6-7. The diagnoses included cervical spondylosis. VA electromyograph (EMG) in May 2005 showed findings consistent with upper motor neuron pathology (cervical myelopathy "with severe degree in view of the weakness of [the] left hand"), and a non-localizing mild sensory ulnar neuropathy. In statements on a June 2005 VA Form 21-4138, a VA clinician stated that he had been treating the Veteran "for his chronic cervical spinal cord injury and left arm/hand weakness." This clinician also stated that a recent EMG had shown "a poor activation of muscles consistent with a cervical myelopathy which cause[d] his left hand weakness." This clinician stated further that the Veteran had "great difficulty" lifting his left arm "up high above the hand." This clinician also stated further that the Veteran's left hand had lost almost all of "the gripping strength required for daily routines such as combing the hair or holding small objects." This clinician finally stated that an MRI of the Veteran's cervical spine showed mild compression of the ventral cervical spine cord by a protruded disc. On VA outpatient treatment in June 2007, the Veteran's complaints included cervical neck pain in the mid-line and hearing a "pop" when he moved his head. He stated that he could relieve the neck pain by holding the spot with his hand and unlocking it. Physical examination showed no deterioration in manual muscle strength and grip strength of each hand was 4+/5 "at least." The assessment was minimal to mild cervical spine joint-paraspinal ligament laxation or locked joints due to transient muscle spasm. The Veteran received a course of VA outpatient physical therapy in 2008 for his complaints of chronic neck pain. In May 2008, the Veteran's reported history included "pain across his neck off and on for the last 6 years" which radiated down both arms and resulted in numbness/tingling/weakness in his arm. Objective examination of the neck showed tenderness over the C4-7 spine and paraspinal muscles bilaterally, a decreased active range of motion in extension and lateral rotation bilaterally, and range of motion and muscle strength within normal limits in both upper extremities. A computerized tomography (CT) scan of the Veteran's cervical spine taken in June 2007 was reviewed and showed degenerative osteoarthritis of the cervical spine with no evidence of cervical stenosis. The assessment included chronic neck pain secondary to degenerative joint disease. On VA examination in April 2009, the Veteran's complaints included chronic neck pain "aggravated by frequent[ly] turning his head and doing above shoulder activity in the neck...and neck pain with radiation to the left lower extremity aggravated by frequent bending, stooping, and lifting heavy weight." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran stated that his neck pain started in 1998 or 1999 "when he was deployed in Italy where some heavy material fell on his head and neck." The examiner stated that there was "no documentation of total physical incapacitation" due to flare-ups of neck pain in the previous 12 months. The Veteran was independent in his activities of daily living. "He swims three times a week up to 20 minutes." He denied any bowel, bladder, or constitutional symptoms. He did not use any cane, crutches, or assistive device. He was not working but was taking real estate courses. Physical examination in April 2009 showed the Veteran walked without assistive device and had a normal gait and posture, mild tenderness in the cervical spine, and no bowel or bladder dysfunction or vertebral fracture. Range of motion testing of the cervical spine showed forward flexion to 35 degrees, extension to 25 degrees, rotation to 60 degrees in each direction, and side bending to 15 degrees in each direction. There was no pain on range of motion testing and no loss of motion following repetitive range of motion testing. The VA examiner noted that the Veteran was "cracking his neck during the examination by forcibly twisting his neck. When I inquired as to why he was doing that, he stated that a chiropractor had taught him and that makes him feel better." An MRI of the cervical spine taken in April 2005 was reviewed and showed broad-based central disk protrusion at C5-6 and degenerative disc disease at C3-4 and C6-7. Electrodiagnostic studies in May 2005 were reviewed and showed cervical myelopathy. The VA examiner stated that there was no evidence of additional limitation of motion due to any of the DeLuca factors although the Veteran would have functional limitation in doing above the shoulder activities. The diagnoses included cervical spondylosis with cervical myelopathy. On VA outpatient treatment in October 2009, the Veteran's complaints included chronic neck pain that was worsening. Physical examination showed he was in no acute distress and had a normal gait. The assessment included chronic neck pain. In her October 2009 statement, K.S. stated that the Veteran woke up 3-4 times per night complaining of severe neck pain "that occurs when switching positions." In an October 2009 statement on a VA Form 21-4138, a VA clinician stated that he had seen the Veteran for a cervical spine cord injury with left arm and left hand weakness. This clinician stated that the Veteran's left hand "appears to be weaker and he has more difficulties" in holding heavy objects with his left hand. The clinician also stated that the Veteran had reported that his "cervical neck pain has affected his sleep at night." The Veteran has not identified or submitted any evidence which demonstrates his entitlement to an initial rating greater than 20 percent prior to October 5, 2011, for his service-connected cervical spondylosis. The record evidence demonstrates instead that the Veteran's service-connected cervical spondylosis was manifested by, at worst, complaints of chronic neck pain with radiation to the left upper extremity aggravated by frequent bending, stooping, and lifting heavy weight, forward flexion limited to 35 degrees without pain or additional limitation of motion following repetitive range of motion testing, no localized spasm, mild tenderness, a broad-based central disk protrusion at C5-6 and degenerative disc disease at C3-4 and C6-7, degenerative osteoarthritis, and cervical myelopathy manifested by left hand and arm weakness. As noted elsewhere, his higher initial rating claim prior to October 5, 2011, for service-connected cervical spondylosis is evaluated under DC 5290 prior to September 26, 2003, and DC 5242 thereafter. See 38 C.F.R. § 4.71a, DC 5003; see also 38 C.F.R. § 4.71a, DC 5290 (effective before September 26, 2003), currently 38 C.F.R. § 4.71a, DC 5242 (2012). VA examination in May 2003 showed neck flexion to 40 degrees although lateral bending and rotation were "markedly limited" on the right due to pain. X-rays of the cervical spine showed only mild to moderate degenerative disc disease at C3-4 and C6-7. VA EMG in May 2005 documented severe weakness in the left hand due to cervical myelopathy. A VA clinician stated in June 2005 that the Veteran had "great difficulty" lifting his left arm "up high above the hand" and the Veteran's left hand had lost almost all of "the gripping strength required for daily routines such as combing the hair or holding small objects." This clinician also stated that an MRI of the Veteran's cervical spine showed only mild compression of the ventral cervical spine cord by a protruded disc. VA outpatient treatment in June 2007 showed the presence of only minimal to mild cervical spine joint-paraspinal ligament laxation or locked joints due to transient muscle spasm with almost full grip strength (4+/5 "at least") in both hands. VA examination in May 2009 showed forward flexion to 35 degrees without pain on range of motion testing and no loss of motion following repetitive range of motion testing. There was only mild tenderness present in the Veteran's cervical spine. The May 2009 VA examiner stated that there was "no documentation of total physical incapacitation" due to flare-ups of neck pain in the previous 12 months. The Veteran was independent in his activities of daily living. There was no evidence of additional limitation of motion although the Veteran had functional limitation in doing above the shoulder activities. He was diagnosed as having cervical spondylosis with cervical myelopathy. It appears that the 20 percent rating assigned to the Veteran's service-connected cervical spondylosis effective prior to October 5, 2011, is based on his moderately disabling cervical spondylosis with associated cervical myelopathy manifested by left hand and arm weakness. See 38 C.F.R. § 4.71a, DC 5290 (effective before September 26, 2003), currently 38 C.F.R. § 4.71a, DC 5242 (2012). Hence, an initial rating greater than 20 percent prior to October 5, 2011, for the Veteran's service-connected cervical spondylosis is not warranted. The Veteran finally is not entitled to an initial rating greater than 30 percent effective October 5, 2011, for his service-connected cervical spondylosis. The evidence of record indicates that, on VA examination on October 5, 2011, the Veteran's service-connected cervical spondylosis was manifested by, at worst, forward flexion limited to 20 degrees with objective evidence of painful motion beginning at 10 degrees and additional limitation of motion following repetitive range of motion testing, and functional impairment due to pain on movement. As noted elsewhere, because the Veteran is in receipt of the maximum 30 percent rating available under DC 5290 effective October 5, 2011, for his service-connected cervical spondylosis, it will be evaluated under the revised DC 5242. Id. VA examination on October 5, 2011, also showed that the Veteran complained of constant chronic neck pain and limitation of motion in the neck with radiation to the left upper extremity. The Veteran did not report that flare-ups impacted the function of the cervical spine. Muscle strength testing was 5/5 in all upper extremities. There was no localized tenderness to palpation of the joints/soft tissue of the cervical spine, no guarding or muscle spasm, no muscle atrophy, no neurologic abnormalities such as bowel or bladder problems due to cervical myelopathy, no IVDS of the cervical spine, and no vertebral fracture. It appears that the 30 percent rating assigned to the Veteran's service-connected cervical spondylosis effective October 5, 2011, is based on his limited forward flexion to 20 degrees with objective evidence of painful motion beginning at 10 degrees and additional limitation of motion following repetitive range of motion testing and functional impairment of the cervical spine due to pain on movement. Id. Hence, an initial rating greater than 30 percent effective October 5, 2011, for the Veteran's service-connected cervical spondylosis is not warranted. In so deciding, the Board finds that the Veteran's general complaints of back and neck pain with functional impairment on use are both competent and credible. The specific findings by trained VA clinicians greatly outweigh the Veteran's generalized descriptions when these disabilities are evaluated against the schedular criteria, however. For instance, the Veteran's forward flexion of the lumbar spine was to 95 degrees (or more than a full range of motion) and forward flexion of the cervical spine was to 40 degrees (out of a possible total of 45 degrees or nearly a full range of motion) with markedly limited lateral bending and rotation to the right on VA examination in May 2003. Although the Veteran's lumbar spine forward flexion was limited to 45 degrees on VA examination in April 2009, there was no additional limitation of motion due to any of the DeLuca factors despite his continuing complaints of chronic low back pain. The Veteran's cervical spine had slightly limited forward flexion to 35 degrees but an almost full range of motion on rotation to 60 degrees (out of a possible total of 80 degrees) in each direction with no pain on range of motion testing and no loss of motion following repetitive range of motion testing. In other words, the Veteran's low back and neck function were not additionally limited by pain, weakness, fatigue, lack of endurance or incoordination after repetitive use in April 2009. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Finally, on VA examination in October 2011, the Veteran's lumbar spine forward flexion was limited to 20 degrees following repetitive range of motion testing, his cervical spine forward flexion was limited to 20 degrees with objective evidence of painful motion beginning at 10 degrees and additional limitation of motion following repetitive range of motion testing, functional impairment of the cervical spine due to pain on movement, but no IVDS was present. In reviewing the lay and medical evidence of record within the context of this appeal, the Veteran's functional impairment due to pain and weakness on use of the low back and neck have been considered in supporting the staged ratings currently assigned under DCs 5295 and 5237 and under DCs 5003-5290 and 5003-5242, respectively. In totality, the lay and medical evidence does not support an award of further compensation for either the Veteran's back or neck disabilities under the provisions of 38 C.F.R. §§ 4.40 and 4.45. Moreover, the Board also finds no additional DCs applicable to the currently appealed low back and neck claims. In this respect, and as noted elsewhere, there is no lay and medical evidence during the appeal period of any IVDS (DC 5243) in either the lumbar or cervical spine. There also is no lay and medical evidence during the appeal period of any associated objective neurologic abnormalities, to include bowel or bladder impairment, such that a separate compensable rating under an applicable DC is warranted for such impairment. The Board also notes that, in the December 2012 rating decision, the RO granted service connection for peripheral neuropathy in each of the Veteran's extremities and assigned separate compensable ratings for these disabilities associated with his service-connected low back and neck disabilities based on a review of the evidence of record. This suggests that the Veteran's complaints of neuropathy associated with his service-connected low back and neck disabilities are compensated appropriately under the Rating Schedule. Consideration also has been given regarding whether the schedular ratings are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). In this regard, the schedular ratings in this case are not inadequate. The diagnostic criteria adequately assess the severity and symptomatology of the Veteran's low back and neck disabilities as the criteria assess pain and functional capacity with regard to occupation and activities of daily living. The Veteran has asserted that these disabilities cause constant and increasing pain and weakness as well as prevent him from engaging in daily activities without assistance or burden. The Board is sympathetic to these competent and credible statements but notes that these difficulties already are contemplated by the rating schedule and that the Veteran still is able to function generally with respect to most tasks of daily living as indicated on his VA examinations and by his lay statements. There further is no indication of frequent hospitalizations related to the Veteran's service-connected low back and neck disabilities during the pendency of this appeal. Hence, consideration of extra-schedular ratings is thus not warranted. 38 C.F.R. § 3.321(b)(1). As noted in the Introduction, a review of the claims file indicates that the Veteran has contended that he is unemployable as a result of his service-connected disabilities. The Veteran reported at his most recent VA examination in October 2011 that he worked part-time from home as a linguist although he previously had reported on a VA Form 21-8940 completed in October 2009 that he had been unemployed since leaving a job with VA in August 2008. The Veteran's self-reported part-time employment would render him ineligible for consideration of a TDIU. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (holding that TDIU is a part of an increased rating or initial rating only when there is evidence of unemployability). In any event, as also noted in the Introduction, the Veteran's TDIU claim is addressed further in the remand below. The Board finally finds that consideration of staged ratings for the Veteran's service-connected lumbar radiculitis and service-connected cervical spondylosis is not warranted. See Fenderson, 12 Vet. App. at 119. As outlined above, the evidence of record demonstrates that each of these disabilities is not more disabling than evaluated during the relevant time periods currently on appeal. Thus, consideration of additional staged ratings is not warranted. Id. ORDER Entitlement to an initial rating greater than 10 percent prior to April 22, 2009, greater than 20 percent prior to October 5, 2011, and greater than 40 percent thereafter for lumbar radiculitis is denied. Entitlement to an initial rating greater than 20 percent prior to October 5, 2011, and greater than 30 percent thereafter for cervical spondylosis is denied. REMAND As noted in the Introduction, in a September 2010 rating decision, the RO denied the Veteran's claims for a disability rating greater than 10 percent for hepatitis C and hepatitis B, entitlement to service connection for obstructive sleep apnea, and entitlement to a TDIU. The Veteran disagreed with this decision in a letter dated on July 27, 2011, and date-stamped as received by the AMC on August 1, 2011. It is not clear whether the AMC forwarded the Veteran's July 2011 letter to the RO or otherwise notified the RO of his disagreement with the September 2010 rating decision. In any event, to date, the RO has not issued a Statement of the Case (SOC) on these claims. Where a claimant files a notice of disagreement and the RO has not issued an SOC, the issue must be remanded to the RO for an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, on remand, the RO should issue an SOC on the issues of entitlement to a disability rating greater than 10 percent for hepatitis C and hepatitis B, entitlement to service connection for obstructive sleep apnea, and entitlement to a TDIU to the Veteran and his service representative. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Issue an SOC to the Veteran and his service representative on the claims for a disability rating greater than 10 percent for hepatitis C and hepatitis B, entitlement to service connection for obstructive sleep apnea, and entitlement to a TDIU. A copy of any SOC issued should be included in the claims file. These claims should be returned to the Board for further appellate consideration only if the Veteran perfects a timely appeal. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs