Citation Nr: 1306244 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-20 790A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to September 29, 2008 and 20 percent as of September 29, 2008 for service-connected chronic musculoligamentous low back sprain (to include groin pain). 2. Entitlement to a disability rating in excess of 10 percent prior to September 29, 2008 and 20 percent as of September 29, 2008 for service-connected cervical strain with narrowing of disc space. 3. Entitlement to an initial evaluation for neurological impairment of the right upper extremity associated with cervical spine strain with narrowing of disc space, rated as 10 percent disabling effective February 27, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from May 1997 to April 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio, which denied increased ratings for the Veteran's chronic orthopedic disabilities of his cervical spine and low back. During the course of the appeal, a July 2007 rating decision of the Washington, D.C., VA Regional Office, that assigned a 10 percent disability evaluation for neurological impairment of the right upper extremity secondary to chronic cervical strain with disc space narrowing, after granting service connection for the same. Thereafter, a November 2008 rating decision of the Roanoke, Virginia, VA Regional Office (RO), granted an increased rating to 20 percent for service-connected cervical strain and an increased rating to 20 percent for service-connected low back sprain, with an effective date of September 29, 2008 for each increased rating award. (Implicit in this appeal is a claim for an earlier effective date for each of the staged rating increases.) The RO in Roanoke, Virginia, is now the agency of original jurisdiction over the current appeal. In February 2011, the Veteran testified during a hearing before a Veterans Law Judge at the VA Central Office in Washington, D.C. A transcript of the hearing is of record. In March 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, D.C., for additional evidentiary development. Following completion of this development, the appeal was readjudicated by the RO and the ratings and effective dates of awards assigned to the Veteran's cervical spine and low back disabilities were confirmed and continued in an August 2012 rating decision/supplemental statement of the case. Thereafter, the case was returned to the Board in August 2012 and the Veteran now continues his appeal. At this juncture, the Board notes that the Veterans Law Judge who presided over the aforementioned hearing of February 2011 has since retired from the Board during the pendency of this appeal. The Veteran was notified via correspondence dated September 2012 of this development and of his right to a new Board hearing, pursuant to 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707. However, in a response dated September 2012, he expressly waived his right to a new hearing and requested the Board to proceed with the adjudication of his appeal based on the evidence of record. For the reasons that will be discussed in the REMAND portion of this decision, the issues of entitlement to a disability rating in excess of 10 percent prior to September 29, 2008 and 20 percent as of September 29, 2008 for service-connected cervical strain with narrowing of disc space and entitlement to an initial evaluation above 10 percent for neurological impairment of the right upper extremity associated with cervical spine strain with narrowing of disc space are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. The Veteran and his representative will be notified by VA if any further action is required on their part. FINDINGS OF FACT 1. For the period prior to September 29, 2008, the Veteran's chronic musculoligamentous low back sprain (to include groin pain) was manifested by forward flexion greater than 60 degrees but less than 85 degrees and a combined range of thoracolumbar motion of 240 degrees, even considering his complaints of pain and limitation of function. 2. For the period from September 29, 2008 to the present, the Veteran's chronic musculoligamentous low back sprain (to include groin pain) is manifested by forward flexion greater than 30 degrees but less than 60 degrees and a combined range of thoracolumbar motion of 160 degrees, even considering his complaints of pain and limitation of function. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to September 29, 2008 for service-connected chronic musculoligamentous low back sprain (to include groin pain) have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for a disability rating in excess of 20 percent from September 29, 2008 for service-connected chronic musculoligamentous low back sprain (to include groin pain) have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's Duty to Assist. In accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. With respect only to the claim for an evaluation greater than 10 percent prior to September 29, 2008 and greater than 20 percent as of September 29, 2008 for service-connected chronic musculoligamentous low back sprain (to include groin pain), this issue stems from the Veteran's claim for a rating increase for his low back disability, which was received by VA in December 2003. A VCAA notice letter was dispatched to the Veteran in February 2004, prior to the July 2006 rating decision now on appeal, with a subsequent notice letter dispatched during the course of the appeal in March 2006. These letters address and incorporate the increased rating issue adjudicated below and, collectively, satisfy the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that a timing of notice error exists in that fully compliant notice did not precede the initial adjudication of the Veteran's increased rating claim, the later notice was followed by subsequent readjudications, most recently in an August 2012 rating decision/supplemental statement of the case, thereby curing the defective notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the claimant of its duty to assist in obtaining records and supportive evidence. As the present appeal stems from the Veteran's application to reopen his claim for a rating increase, which was received on December 19, 2003, the Board must consider all evidence pertinent to the Veteran's low back disability for up to one year prior to the date of claim (i.e., December 19, 2002), pursuant to 38 C.F.R. § 3.400(o)(2) (2012). The Board observes that the Veteran's private and VA medical and examination records pertinent to treatment of his low back disability for the period from 2003 to 2011 have been obtained and associated with his claims file. The Board has also researched the Virtual VA digital information database to review any other medical records electronically associated with the Veteran's claim that may be relevant to the current appeal. As will be discussed further below, the Board finds that the state of the record is sufficiently developed to fully adjudicate the Veteran's claim for higher evaluations for his low back disability. The Veteran was provided with VA examinations during the course of this claim to assess the severity of his low back disability in February 2007 and September 2008. The clinicians who conducted these examinations indicated that they considered the Veteran's pertinent clinical history, and all their objective findings relating to the low back disability addressed in these examination reports are presented in the context of this history. Therefore, the Board finds no defects in these current examinations that would render any of them inadequate for VA adjudication purposes for the issue decided on the merits herein. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that the Veteran's last VA examination of his service-connected low back disability is over four years old. However, the mere passage of time since that examination is not reason enough, alone, to require re-examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, the medical records pertaining to the Veteran's treatment for his low back disability are complete up to May 2011, and these records and the lay evidence submitted neither demonstrate nor suggest an increase in this disability since the September 2008 examination. A remand for a new examination is therefore unnecessary. Discussion of the Veteran's February 2011 Board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. All the issues on appeal were identified as an issue at the hearing. Information was also elicited from the Veteran concerning the nature and severity of his low back disability, to include functional impairment at work. The Veteran has had ample opportunity during the course of this appeal to identify and/or submit any additional evidence deemed pertinent to his increased rating claim as it relates to his low back disability. The Veteran has not indicated that there are outstanding relevant medical records or other pertinent evidence that must be considered that has not already been obtained with respect only to this issue. Thusly, the Board is satisfied that the evidence is sufficiently developed for appellate adjudication of the low back claim and that no further development with regard to this specific matter is necessary. The Board notes that in its remand of March 2011, it instructed the RO/AMC to obtain all current VA records associated with the Veteran's treatment for his low back disability, as the evidence prior to then did not include any evidence more current than 2005. VA has since obtained all available VA clinical records up to May 2011. The Board concludes that the evidentiary development undertaken is in substantial compliance with its March 2011 remand instructions and therefore an additional remand for further corrective development is not deemed necessary. [See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999): Exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.] Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of the increased rating claim decided herein, and thus no additional assistance or notification is required in this regard. As previously discussed, the claimant has suffered no actual prejudice that would warrant a remand, and thus his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of the increased rating claim discussed above. The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased ratings, generally: Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran filed his claim for an increased rating for his low back disability on December 19, 2003, as shown by the date stamped on the back of his request for benefits. The relevant temporal focus is therefore from one year prior to that date, or December 19, 2002, to the present. Id. at 509. Earlier evidence is not necessarily irrelevant, but it is generally not needed to determine the effective date of an increased rating. Id. To the extent that the Veteran claims entitlement for an increased rating award prior to December 19, 2002, the Board notes that prior to the Veteran's December 2003 application for a rating increase for chronic musculoligamentous low back sprain (to include groin pain), the latest rating decision addressing this disability was an unappealed and final rating decision dated in February 2002. Between the date of the February 2002 notification letter regarding the February 2002 rating decision and the receipt of the Veteran's application for a rating increase in December 2003, no evidence that was new and material to his service-connected chronic musculoligamentous low back sprain (to include groin pain) was submitted by the claimant. Therefore, there is no pending claim stemming from the date of the increased rating claim that was addressed in the prior rating decision of February 2002. [See Bond v. Shinseki, 659 F.3d 1362 (2011): the United States Court of Appeals for Veterans Claims (Court) held in Bond that 38 C.F.R. § 3.156(b) requires the VA to decide whether additional evidence, (received after a rating decision but before the expiration of the appeal period), constitutes new and material evidence, such that the rating decision is not rendered final.] Rating criteria for disabilities of the thoracolumbar spine: Orthopedic manifestations of the Veteran's service-connected lumbar spine disability are rated under the criteria provided in 38 C.F.R. § 4.71a, Diagnostic Codes 5237 for impairment due to lumbosacral strain. The criteria for rating all spine disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine, the current version of which has been in effect since September 2003. The criteria contained therein provide that these disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The pertinent part of the General Formula for rating disability of the thoracolumbar spine is as follows: 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 Unfavorable ankylosis of the entire spine, assign a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine, assign a 50 percent rating. [F]orward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, assign a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; . . . or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; . . . or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, assign a 20 percent rating. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; . . . or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; . . . or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the vertebral body height, assign a 10 percent rating. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the . . . thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire . . . thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, assignment of a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, assignment of a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, assignment of a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, assignment of a 10 percent evaluation is warranted. Note (1): For purposes of evaluations under Diagnostic Code 5243 [intervertebral disc syndrome], an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2012). Additionally, Diagnostic Code 5003 contemplates rating orthopedic impairment due to arthritis and provides that arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint 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, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, rate as 20 percent. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, rate as 10 percent. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40 (2012), functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45 (2012), factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59 (2012), painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207 - 08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Indeed, the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Entitlement to a disability rating in excess of 10 percent prior to September 29, 2008 and 20 percent as of September 29, 2008 for service-connected chronic musculoligamentous low back sprain to include groin pain. The clinical evidence dated prior September 29, 2008, shows that in August 2003 the Veteran complained of back pain in his lumbar region. As a student, he used a backpack that he pulled on rolling casters as he could not actually wear the pack on his back because of pain. October 2005 treatment reports show that he complained of low and mid-back pain aggravated by certain motions. The back pain was clinically determined to be muscular in nature. Moist heat, massage, and physical exercises were prescribed. VA medical reports dated in 2006 shows that the Veteran was treated for low back pain of a throbbing nature, with no neurogenic symptoms such as bladder or bowel incontinence reported. A February 2007 VA examination report shows that the Veteran experienced flare-ups of back pain that caused him to miss two days of school per month. Back pain was aggravated by physical exertion and prolonged sitting and standing, but he denied having any incapacitating episodes. Back pain also interfered with ability to sleep. He relieved his symptoms with moist heat and pain medication and he avoided performing heavy lifting. Physical examination revealed no lumbar paravertebral muscle spasm and he was negative on straight leg raising. Thoracolumbar range of motion testing shows that on three repeated trials for each plane of motion, he displayed lateral flexion to 35 degrees, bilaterally; rotation to 35 degrees, bilaterally; backward extension to 35 degrees; and forward flexion to 65 degrees. Pain was the limiting factor. However, in light of the fact that three range of motion trials were conducted, and that there had been no change in the range of motion findings, the examiner stated that any further comment of limitation of motion would be purely speculative. MRI study in January 2007 revealed normal lumbosacral findings. The diagnosis was chronic lumbar strain with limitation of spinal motion. A May 2007 VA lumbar spine MRI also revealed normal findings. A private physician's note dated in mid-September 2008 shows that the Veteran was treated for "lumbar spondylosis - degenerative low back disease," with flare-ups reported over three days in July 2008 and two days in August 2008. The physician advised that the Veteran rest and use his prescribed medications during these flare-ups. Applying the above evidence to the rating criteria, the Board finds that the Veteran's chronic musculoligamentous low back sprain (to include groin pain) is manifested by subjective complaints of low back pain, with forward flexion greater than 60 degrees but less than 85 degrees and a combined range of thoracolumbar motion of 240 degrees. Such does not support the assignment of a higher rating. The thrice-repeated range of motion trials on examination in February 2007 indicated no significant functional loss. Further, referencing the three range of motion trials were conducted, which showed no change in the range of motion findings, the examiner stated that any further comment of limitation of motion would be purely speculative. A finding of functional loss must be supported by adequate pathology, which is not shown. There is also no evidence that intervertebral disc syndrome was clinically demonstrated. Indeed, while the Veteran reported missing approximately two days of classes per month due to back pain, there is no indication that he was ever prescribed bed rest. The impairment shown by the evidence objectively meets the criteria for a 10 percent evaluation, but does not more closely approximate the criteria for a 20 percent evaluation under Diagnostic Code 5237. The claim for a rating above 10 percent for chronic musculoligamentous low back sprain (to include groin pain) prior to September 29, 2008, is denied. Because the evidence in this case is not approximately balanced with respect to the merits of this part of his claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA examination of the Veteran's thoracolumbar spine on September 29, 2008, shows that he reported having recurring low back pain but no groin pain at the time, with no pain radiation or incapacitating episodes. He stated that his back pain did not prevent him from being employed and that he could function and perform his usual daily activities. Treatment involved physical therapy and prescribed pain medication. Prior low back diagnoses were noted to include spondylosis and degenerative joint disease. He did not use a back brace and did not report having weakness, fatigability, decreased endurance, incoordination, or flare-ups. Physical examination revealed symmetrical musculature with no spasm, postural abnormalities, or fixed deformities observed, and no tenderness on palpation of the lumbar musculature. Range of motion testing revealed forward flexion to 40 degrees, backward extension to 20 degrees, lateral flexion to 20 degrees, bilaterally, and rotation to 30 degrees, bilaterally, with pain being the limiting factor. Pain was primarily associated with lumbar rotation, bilaterally, forward flexion, and backward extension. There was no evidence of fatigability, decreased endurance, or incoordination. There was also no indication of pain with repetitive motion. The examiner thereby felt it would again be speculative to comment further on range of motion. The diagnosis was recurring low back pain. VA outpatient treatment records dated October 2008 - May 2011 show that the Veteran received treatment for complaints of back pain aggravated by heavy lifting, for which he was prescribed pain medication. His posture and gait were within normal limits on clinical assessment in February 2010. A February 2011 VA physician's letter to the Veteran's employer stated that the Veteran had chronic low back pain that required daily medication to relieve the symptoms and he was to be excused from performing stooping motions, carrying heavy objects, and lifting items weighing more than 15 pounds, to avoid aggravating his low back disorder. The Veteran testified, in pertinent part at his February 2011 Board hearing that he has no history of surgery to treat his low back disability. He used a TENS unit and pain medications every day for his low back symptoms and experienced difficulty sleeping and operating a car due, in part, to his back pain. The Veteran reported that he missed approximately 10 percent of work per year due to low back pain flare-ups. He testified that for the past four years he was employed full-time as an information technology specialist for the Department of Commerce and that his duties involved lifting computer components such as central processor units, servers, switches, and routers, but to avoid aggravating his low back disability he was limited by weight as to what he could physically lift on the job. Applying the above evidence to the rating criteria, the Board finds that from September 29, 2008, to the present, the Veteran's chronic musculoligamentous low back sprain is manifested by subjective complaints of chronic back pain but no groin pain, with no muscle spasm or significant skeletal or soft tissue abnormalities on X-ray and MRI imaging studies, and objectively demonstrated forward flexion greater than 30 degrees but less than 60 degrees and a combined range of thoracolumbar motion of 160 degrees. An increased rating is not supported by the findings. There is also no evidence to support the assignment of a higher rating based on loss of function. The September 2008 examination indicated no significant functional loss due to weakness, fatigue, decreased endurance, incoordination, or flare-ups; and, for that matter, the Veteran reported at that time that he could function and perform his daily activities. No intervertebral disc syndrome is clinically demonstrated and the Veteran has denied having an incapacitating episodes of back pain. The Board recognizes that the Veteran has been medically advised to avoid performing stooping motions and lifting more than 15 pounds lest these activities aggravate his low back disability. However, these limitations do not equate to any quantifiable loss of function. The avoidance of certain physical activities or the lifting of weights does not mean there is an actual loss of function. Rather, the Veteran was merely prescribed a regimen to avoid exacerbating his low back disability. The Board emphasizes that none of the more recent VA treatment records, which reflect ongoing care of the spine, show an actual increase in symptomatology or decrease in function. The thoracolumbar spine impairment described above meets the criteria for a 20 percent evaluation on the basis of forward flexion objectively demonstrated to be greater than 30 degrees but less than 60 degrees, but does not more closely approximate the criteria for a 40 percent evaluation under Diagnostic Code 5237, as the evidence does not objectively demonstrate thoracolumbar forward flexion to only 30 degrees or less or the presence of any thoracolumbar spine ankylosis. In view of the foregoing discussion, the claim for a rating above 20 percent for chronic musculoligamentous low back sprain (to include groin pain) from September 29, 2008, is denied. Because the evidence in this case is not approximately balanced with respect to the merits of this part of his claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular consideration: The Board also finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected chronic musculoligamentous low back sprain (to include groin pain) during the pendency of this claim, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The evidence establishes that the low back disability does not produce a greater impact on his occupational capacity for the relevant staged time periods that renders impractical the criteria contemplated by the applicable rating schedule as contained in 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran's claims file indicates that he is employed on a full-time basis in the field of computer and information technology with the Department of Commerce. The evidence of record indicates that his low back disability does not prevent him from working and his hearing testimony before the Board in February 2011 indicates that he does not lose more than approximately 10 percent of time from work due to the disability at issue. Although his hearing testimony and the pertinent medical evidence indicates that he does experience some interference with his employment, primarily in that he is restricted from performing stooping motions, carrying heavy items, and lifting items weighing more than 15 pounds, this level of occupational impairment is deemed to be within the scope of the applicable rating criteria for, and the evaluations assigned to his low back disability. The Board further finds that the low back disability does not present a picture of impairment that renders the applicable rating schedule inadequate to rate this disability under the specific facts unique to this individual case. Furthermore, the evidence does not indicate that the Veteran's low back disability requires treatment through frequent hospitalizations. The evidence demonstrates that the level of occupational impairment individually attributable solely to the service-connected low back disability for the relevant periods at issue is adequately contemplated in the criteria of the applicable rating schedule. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board is not required to discuss the possible application of an extraschedular rating for the low back disability under the provisions of 38 C.F.R. § 3.321(b)(1) (2012). See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993). Entitlement to a total disability rating based on individual unemployability (TDIU) is an alternative theory of all claims for a higher disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased rating claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran does not contend nor does any lay or medical evidence suggest that the Veteran is unemployable as a result of his service connected disabilities. Rather, the evidence clearly demonstrates that he held, and continues to hold full-time employment throughout the entire period of this claim. The Board thereby concludes that a TDIU claim has not been explicitly raised by the Veteran or implicitly raised by the record. ORDER The claim for a disability rating in excess of 10 percent prior to September 29, 2008 for service-connected chronic musculoligamentous low back sprain (to include groin pain) is denied. The claim for a disability rating in excess of 20 percent from September 29, 2008 for service-connected chronic musculoligamentous low back sprain (to include groin pain) is denied. REMAND The Board has reviewed the claims file and concludes that the record requires further evidentiary development with regard to the issues of entitlement to a disability rating in excess of 10 percent prior to September 29, 2008 and 20 percent as of September 29, 2008 for service-connected cervical strain with narrowing of disc space and an initial evaluation above 10 percent for neurological impairment of the right upper extremity associated with cervical spine strain with narrowing of disc space. As noted in the Introduction of the instant document, during the pendency of the current appeal the Washington, D.C., VA Regional Office granted service connection for neurological impairment of his right upper extremity associated with cervical spine strain with narrowing of disc space in a July 2007 rating decision and assigned a 10 percent disability rating, effective February 27, 2007. The rating to be assigned for any and all manifestations of the Veteran's cervical spine disability is before the Board for the entire period of time on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (explaining that once there is jurisdiction as to an initial or higher disability evaluation, jurisdiction extends to all means of assigning a higher evaluation). Additionally, the schedular criteria for rating disabilities of the spine explicitly states that separate neurologic and orthopedic manifestations are to be assigned ratings under the respective criteria, unless intervertebral disc syndrome is evaluated based on incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5237 Note (1) (2012). In short, the Veteran's timely notice of disagreement with the July 2006 rating decision conferred on the Board jurisdiction to address all manifestations of his cervical spine disability during all periods encompassed by his appeal. The Washington, D.C., VA Regional Office's assignment of a separate rating for neurological impairment of the right upper extremity during the course of his claim and appeal, whether characterized as a grant of service connection or otherwise, does not divest the Board of that jurisdiction. The Board has reviewed the claims file and notes that present state of the evidence does not address the severity of the neurological impairment of the Veteran's service-connected right upper extremity. This is very perplexing. Indeed, it is unclear to the Board as to how the RO/AMC arrived at assigned a 10 percent rating for neuropathy of the right upper extremity when all the available evidence only pertains to neurological symptoms affecting his left upper extremity. Put another way, there is insufficient evidence to evaluate the Veteran's right upper extremity neuropathy as well as some question as to whether a separate compensable rating should be assigned for a neurological disorder of the left upper extremity. In view of this deficit, further evidentiary development is warranted so that a clear picture of the level of severity of the neurological impairment of the upper extremities may be obtained, to include providing the Veteran with the appropriate medical examination(s) to assess the current state of the service-connected cervical strain that VA has linked to the right upper extremity neuropathy. The examination(s) should address any additional neurological symptoms that may be associated with this cervical spine disability. Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC for the following action: 1. The RO should obtain the names and addresses of all medical care providers, both VA and non-VA, that treated the Veteran for chronic cervical spine symptoms, including neurological complications due to disc space narrowing associated with his cervical disability, since May 2011 (the date of the most current medical evidence relating to his cervical spine disability that is associated with his claims file). After obtaining the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, to provide the Veteran with the opportunity to obtain and submit those records for VA review. 2. Thereafter, the RO must arrange for the Veteran to undergo the appropriate VA examination(s) for spine disorders for the purpose of ascertaining the current nature and extent of severity of his service-connected cervical spine strain with disc space narrowing and associated neurological impairment of the upper extremities. Any indicated diagnostic tests and studies must be accomplished. The examiner(s) must review the Veteran's claims folder in conjunction with the examination. (a) All pertinent symptomatology and findings must be reported in detail, to include, in degrees, the range of motion of the Veteran's cervical spine in all planes. The examiner(s) should note the point at which motion becomes painful, if any, in all planes of motion. The extent of any incoordination, weakened movement and excess fatigability on use should be described, as well as flare-ups or when the neck is used repeatedly. To the extent possible, functional impairment due to incoordination, weakened movement and excess fatigability, as well as due to flare-ups or when the neck is used repeatedly, should be assessed in terms of additional degrees of limitation of motion. The examiner(s) should also state whether the cervical spine disability results in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) The examiner(s) must also comment upon the extent that the service-connected cervical spine disability involves the adjacent nerves and/or the muscles and joint structure, particularly with respect to his upper extremities. With respect to any subjective complaints of pain, the examiner(s) is/are requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected cervical spine disability, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to this cervical spine disability. (c) As the Veteran has a separate rating for neuropathy of the right upper extremity associated with his cervical spine strain (see July 2007 Washington, D.C., VA Regional Office rating decision), the examiner(s) must also clinically identify all disabling manifestations of the right upper extremity neuropathy. Further, as there is clinical evidence demonstrating that the Veteran has neurological impairment of his left upper extremity associated with his cervical spine strain, the examiner(s) should clinically identify all disabling manifestations of the left upper extremity neuropathy. (d) Discuss whether there is intervertebral disc syndrome (IVDS) associated with the service-connected cervical spine strain. If IVDS is found, the examiner(s) should address the question of whether there are incapacitating episodes of elevated symptomatology associated with IVDS and, if so: (i) Is the IVDS manifested by incapacitating episodes having a total duration of at least one week but less than 2 weeks during the previous 12 months? (ii) Is the IVDS manifested by incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months? (iii) Is the IVDS manifested by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months? (iv) Is the IVDS manifested by incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months? Note: An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (e) The examiner(s) must present an opinion on how the Veteran's cervical spine strain, and any neurological impairment of his upper extremities affect his occupational capacity, given his vocation and educational background. A complete rationale for all opinions must be provided. If the examiner(s) is/are unable to present any opinion(s) without resorting to speculation, it must be so noted and explained why this is so. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for either of the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examination(s) was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the claims file must be reviewed to ensure that all of the foregoing requested development has been completed. After all appropriate evidentiary development has been completed, the RO should readjudicate the Veteran's claims of entitlement to a disability rating in excess of 10 percent prior to September 29, 2008 and 20 percent as of September 29, 2008 for service-connected cervical strain with narrowing of disc space, and an initial evaluation above 10 percent for neurological impairment of the right upper extremity associated with cervical spine strain with narrowing of disc space. If the maximum benefit sought on appeal remains denied with regard to any of these claims, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review, if appropriate. The Board intimates no opinion as to the outcome in this case by the action taken herein. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs