Citation Nr: 1306313	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  09-19 314	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent prior to May 2, 2006, and in excess of 20 percent thereafter for spondylosis of the lumbar spine.  

2.  Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the cervical spine.  

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



REPRESENTATION

Veteran represented by:	Iowa Department of Veterans Affairs



ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The Veteran served on active duty from February 1976 to October 1977.  

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued in October 2006, July 2007, and January 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  

On his May 2009 and October 2012 substantive appeals, the Veteran requested a Board hearing in conjunction with the claims on appeal.  However, in December 2012, the Veteran withdrew his request for a hearing.  As such, the Board finds that all due process has been afforded the Veteran with respect to his right to a hearing.  

The Board notes that the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process, that has also been reviewed.   

For reasons discussed below, the issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Prior to May 2, 2006, the Veteran's service-connected spondylosis of the lumbar spine was manifested by tenderness to palpation in the right sacroiliac joint and subjective complaints of low back pain, and does not more nearly approximate a functional loss analogous to forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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, and there is no evidence of incapacitating episodes of intervetebral disc syndrome (IVDS). 

2.  From May 2, 2006, to May 9, 2007, the Veteran's service-connected spondylosis of the lumbar spine was manifested by pain, stiffness, muscular spasms, tenderness to palpation, increased lumbar lordosis, and incapacitating episodes of IVDS of no more than 2 weeks a year, that does not more nearly approximate a functional loss analogous to forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

3.  As of May 10, 2007, the Veteran's service-connected spondylosis of the lumbar spine is manifested by pain, stiffness, soreness, muscle spasms, and flare-ups resulting in functional loss analogous to flexion limited to 30 degrees or less, without evidence of ankylosis of the thoracolumbar spine or spine, or incapacitating episodes of IVDS.

4.  As of April 18, 2012, the Veteran's service-connected spondylosis of the lumbar spine resulted in right lower extremity radiculopathy manifested by no more than a mild sensory and functional impairment, which more nearly approximates a mild disability of the femoral nerve.  

5.  At no time during the appeal period has the Veteran's service-connected spondylosis of the lumbar spine resulted in neurological impairment other than right lower extremity radiculopathy.

6.  For the entire appeal period, the Veteran's service-connected DJD of the cervical spine is manifested by neck pain, stiffness, weakness, flare-ups, and limited range of motion that does not more nearly approximate a functional loss analogous to forward flexion limited to between 15 and 30 degrees, without evidence of IVDS or incapacitating episodes.

7.  For the entire appeal period, the preponderance of the most competent, credible, and probative evidence does not reflect that the Veteran experiences neurological impairment, to include radiculopathy in the bilateral upper extremity, as a result of his service-connected cervical spine disability.  


CONCLUSIONS OF LAW

1.  Prior to May 2, 2006, the criteria for an initial rating in excess of 10 percent for service-connected spondylosis of the lumbar spine are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5242 (2012).

2.  From May 2, 2006, to May 9, 2007, the criteria for an initial rating in excess of 20 percent for service-connected spondylosis of the lumbar spine are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5242 (2012).

3.  As of May 10, 2007, the criteria for an initial 40 percent rating, but no higher, for service-connected spondylosis of the lumbar spine are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5242 (2012).

4.  As of April 18, 2012, the criteria for a separate 10 percent rating, but no higher, for mild right lower extremity radiculopathy have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.25, 4.26, 4.124a, Diagnostic Code 8526 (2012).

5.  The criteria for an initial rating in excess of 10 percent for service-connected degenerative joint disease of the cervical spine are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), 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 (AOJ) decision on the claim for VA benefits.  

The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his lumbar and cervical spine disabilities from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180  (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claims for service connection for his lumbar and cervical spine disabilities were granted and initial ratings were assigned in the October 2006 and January 2012 rating decisions, respectively, on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a)  notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Relevant to the duty to assist, the Board finds that all relevant evidence has been obtained in conjunction with this appeal, including VA outpatient treatment records dated through August 2012 and all obtainable private treatment records identified by the Veteran, to include records from the Social Security Administration.  Additionally, the Veteran has been provided with several VA examinations in conjunction with this appeal, including in May 2006, January 2007, May 2007, September 2007, December 2009, November 2010, August 2011, and April 2012.  Neither the Veteran nor his representative has alleged that such are inadequate for rating purposes.  Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected lumbar and cervical spine disabilities as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claims and no further examination is necessary.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.  

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the appellant's favor.  38 C.F.R. § 4.3. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities.  38 C.F.R. § 4.14. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).  

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  DeLuca v. Brown, 8 Vet. App. 202   (1995).

The basis of disability evaluation 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. 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Board will proceed to evaluate whether the Veteran's service-connected lumbar spine and cervical spine disabilities warrant a higher disability rating. 

The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5242 (2012), while his cervical spine disability is rated under DC 5242.  Diagnostic code 5003 provides the rating criteria for degenerative arthritis, while DC 5242 provides the rating criteria for degenerative arthritis of the spine.  

Spinal disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which applies to Diagnostic Codes (DCs) 5235 to 5243, unless DC 5243 is evaluated under the IVDS Formula.  38 C.F.R. § 4.71a, General Rating Formula, preliminary note.  Note (1) of the rating criteria also directs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, should be evaluated under an appropriate diagnostic code. 

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician.  

Lumbar Spine Disability

By way of procedural background, the evidence reflects that the Veteran filed a claim seeking service connection for a low back disability in December 2004, which the RO denied in an April 2005 rating decision.  However, in October 2006, the RO granted entitlement to service connection for spondylosis of the lumbar spine and assigned an initial 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, DC 5003-5237 (2012), effective December 2004.  

In October 2006, the Veteran submitted a written statement seeking an increased rating for his service-connected lumbar spine disability.  The Board has considered whether the Veteran's October 2006 statement can be construed as a notice of disagreement (NOD) as to the October 2006 rating decision which granted service connection for the lumbar spine disability and assigned an initial 10 percent rating.  

By statute, an NOD is a written communication by the claimant to the agency of original jurisdiction (AOJ) received within one year of notice of the rating decision and expressing the claimant's disagreement or dissatisfaction and a desire to contest or appeal.  No particular form is required.  See 38 U.S.C.A. § 7105(b)(1), (2) (West 2002); 38 C.F.R. § 20.201 (2012).  The Board finds the Veteran's October 2006 statement does not meet these requirements for an NOD, as the statement does not express disagreement with the previous rating decision or indicate that the Veteran wished to contest or appeal the decision.  Instead, the October 2006 statement only requests an increased rating for the lumbar spine disability.  Therefore, the Board finds that the October 2006 statement is not an NOD as to the October 2006 rating decision that granted service connection for a lumbar spine disability.  

However, review of the record reveals that evidence regarding the severity of his service-connected lumbar spine disability was associated with the record during the one year appeal period following the October 2006 rating decision.  Indeed, during the one year period following the issuance of the October 2006 decision, VA treatment records and VA examination reports dated January, May, and September 2007 were associated with the claims file, which show, inter alia, that the Veteran's range of motion decreased in his lumbar spine.  

Because this evidence is new and material to the increased rating claim on appeal and was received during the one year appeal period following the October 2006 rating decision that granted the initial 10 percent rating for the service-connected lumbar spine disability, that rating decision did not become final and all subsequent decisions based on this evidence, including the decision herein, relates back to the original service connection claim.  See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  In other words, because the Veteran submitted new and material evidence regarding to the severity of his lumbar spine disability within the one year period after the initial 10 percent rating was assigned, the increased rating claim on appeal is a claim seeking a higher initial rating and, as such, will consider all evidence submitted regarding the lumbar spine disability since the date of the award of service connection, i.e., December 2004.  

Under the General Rating Formula, the following evaluations are to be assigned for spinal disabilities 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.  A 10 percent rating is warranted for a lumbar spine disability manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation will be assigned for a lumbar spine disability where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula.  Additionally, as indicated previously, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes.  Id. at Note (1).

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.  See 38 C.F.R. § 4.71a, General Rating Formula Note (2); Plate V.  

Relevant Factual Background Regarding Orthopedic Manifestations

A December 2004 VA outpatient treatment record that reflects that the Veteran reported his back pain had resurfaced over the years since his in-service injury.  The Veteran stated that his back pain was in the right, lower region-noted to be the sacroiliac region-and was aggravated by walking and any activity.  He also reported that his back pain was beginning to affect him when he bends.  Objective examination revealed full range of motion with no spasm or tenderness and normal vertebral alignment.  There was, however, tenderness to palpation of the right sacroiliac joint.  There was lumpiness noted to be consistent with either 'plicas' or ganglion formation.  A subsequent December 2004 record revealed full range of motion on examination with no spasm or tenderness and normal vertebral alignment.  The ganglion cyst was palpable at the right sacroiliac joint.  Such was noted to be tender to deep palpation.  An X-ray showed mild to moderate spondylosis of the lumbar spine.   

A January 2005 private treatment record reflects a decrease in lumbar lordosis, osteophytes, decreased disc space, and forminal encroachment in the lumbar spine.  At such time, it was noted that the Veteran had low back pain on the right side, which was constant, but did not travel down the leg.  

A June 2005 VA treatment record reflects complaints of lower back pain that kept the Veteran up at night.  Examination revealed full range of motion with no spasm or tenderness and normal vertebral alignment.  The right sacroiliac joint was tender to deep palpation due to the cyst.  In October 2005, an assessment of mechanical low back pain was noted.  A February 2006 VA treatment record reflects that, upon examination, the Veteran had full range of motion without spasm or tenderness.  Vertebral alignment was normal. 

A March 2006 private treatment record reflects that, upon examination, the right sacroiliac joint was tender.  There was mild tenderness to palpation over the lower lumbar spine and the lumbosacral junction.  

Private treatment records show that, in May 2006, the Veteran's sacroiliac joints bilaterally were tender to palpation.  The Veteran had stiffness and muscular spasm in the lumbar spine.  Additionally, a separate private treatment record shows that the Veteran demonstrated increased lumbar lordosis at rest.  In June 2006, the Veteran's resting posture was characterized by increased lumbar lordosis.  Pain was noted to be 6.5/10.  Pain was in the area of the right sacroiliac joint.  

VA treatment records dated after May 2006 show that the Veteran has continuously complained of pain and tenderness in his low back.  He has reported that his back pain limits his daily activities and results in him being unable to walk or stand for prolonged periods of time.     

At the May 2006 VA examination, the Veteran reported having localized pain in the right lower back area, as well as occasional muscles spasms.  However, the Veteran denied experiencing any stiffness, radiation, or flare-ups associated with his lumbar spine disability.  Objective examination revealed no postural defects.  The Veteran was able to demonstrate forward flexion to 85 degrees with pain at 76 degrees; extension to 25 degrees, right lateral flexion to 11 degrees, left lateral flexion to 22 degrees, and bilateral lateral rotation to 40 degrees.  Repetitive movement did not reveal any fatigability, incoordination, pain, or loss of range of motion, and there was no tenderness to palpation.  There was, however, evidence of mild to moderate paraspinal muscle spasms in the right lumbar region.  

An October 2006 record reflects that the Veteran was disabled for more than two weeks out of any given year by his back disability, which would formerly be treated with bed rest, but such was no longer the standard of care.  

At the January 2007 VA examination, the Veteran reported that his back pain had gotten worse over the past three to four months.  He continued to report that his back pain was constant at 8 out of 10, with flare-ups to a 10.  In addition to pain, the Veteran reported having weakness and some numbness, which is worse with repetition.  Objective examination revealed no tenderness to palpation or muscles spasms.  The Veteran was able to demonstrate forward flexion to 60 degrees with pain, extension to 30 degrees without pain, lateral bilateral flexion to 30 degrees, and lateral bilateral rotation to 30 degrees without pain.  

In June 2007, an MRI revealed left paracentral disc protrusion at L5-S1 and bulging disc at L4-5.  At such time, examination revealed marked spasm were palpable bilaterally.  Range of motion was noted to limited by pain, but degrees were not provided.  Neurologically, deep tendon reflexes reflected that knee jerks and ankle jerks were absent bilaterally.  An assessment of back pain with possible lumbar radiculopathy was not provided.     

At the May 2007 VA examination, the Veteran reported that he was unable to walk or stand for extended periods of time due to his back pain.  The examiner noted that the Veteran could not flex beyond 30 degrees without difficulty but that he could "tip" his back to 45 degrees bilaterally and twist to 30 degrees bilaterally.  

At the September 2007 VA examination, the Veteran reported having painful motion, stiffness, spasms, and pain.  He denied experiencing fatigability and weakness, as well as any neurological symptoms or conditions, such as urinary incontinence, urgency, retention, or frequency, nocturia, fecal incontinence, obstipation, numbness, paresthesias, or erectile dysfunction.  The Veteran reported having flare-ups that occur three times a week with activity.  Examination revealed normal posture, symmetry, gait, and head position.  There were also no abnormal spinal curvatures.  On examination, the Veteran was able to demonstrate forward flexion to 65 degrees with pain at 50 degrees, extension to 27 degrees with pain, left and right lateral flexion to 25 degrees with pain, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees with pain.  

In June 2010, the Veteran was able to demonstrate forward flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and the examiner noted that the Veteran's right rotation was limited, while his left rotation was within full limits.  

At the November 2010 VA examination, the Veteran complained of constant soreness and stiffness.  He was noted to wear a metal shank brace on his back.  He denied experiencing any incapacitating episodes in the previous 12 months but he reported having two episodes in the past which lasted for one day.  The Veteran also reported having flare-ups due to prolonged walking, standing, and positioning.  Examination revealed muscles spasms on palpation and increased motion.  The Veteran was able to demonstrate forward flexion to 80 degrees, extension to 15 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees.  There were objective symptoms of pain but no evidence of ankylosis.  Repetitive movement revealed further limitations, as three repetitions resulted in flexion being limited to 70 degrees, extension to 10 degrees, lateral flexion to 25 degrees, and lateral rotation to 30 degrees.  

In September 2011, the Veteran could demonstrate forward flexion to 25 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, and left lateral flexion to 25 degrees, with each limited by pain.  See September 2011 private treatment record.  

At the April 2012 VA examination, the Veteran reported that his low back pain was 5 out of 10 with flare-ups to 10 with any bending or stress to the right side.  He stated that he did not have any doctor mandated bed rest over the previous 12 months.  On examination, the Veteran demonstrated forward flexion to 90 degrees with no objective evidence of painful motion.  However, he was able to demonstrate extension to 5 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 15 degrees, all with pain.  There was no additional limitation of motion after repetition and there was no muscle atrophy or function loss or impairment of the thoracolumbar spine.  The examiner noted that guarding and muscle spasms were present but did not result in abnormal gait or spinal contour.  

Initial Rating in Excess of 10 Percent Prior to May 2, 2006

Applying the foregoing facts to the legal criteria summarized above, the Board finds that an initial rating in excess of 10 percent is not warranted prior to May 2, 2006, as the evidence does not show symptoms that more nearly approximate the level of disability contemplated by a higher rating.   Indeed, the pertinent evidence does not reflect that there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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.  In this regard, the Board notes that a January 2005 private record reflects a decrease in lumbar lordosis; however, there is no indication that such is the result of muscle spasm or guarding, or that such more nearly approximated reversed lordosis.  

Moreover, the pertinent evidence reflects that, prior to May 2006, the Veteran's lumbar spine disability was manifested by full range of motion, with no evidence of muscle spasms or generalized tenderness.  While there is evidence of localized tenderness at the right sacroiliac joint, such is consistent with the 10 percent rating currently assigned.  Moreover, as noted, symptoms that warrant a rating higher than 10 percent is not shown by the evidence.  Therefore, the Board finds that the pertinent evidence of record does not support the grant of an initial disability rating higher than 10 percent prior to May 2006.  

In evaluating the Veteran's claim under DeLuca and Mitchell, supra, the Board notes that, prior to May 2006, the Veteran did not report experiencing flare-ups of pain and there is no objective evidence of painful motion or additional functional limitation due to pain or other symptoms.  Therefore, the Board finds that a rating higher than 10 percent is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45.

The Board has considered whether a rating higher than 10 percent may be granted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  In this regard, however, the Veteran did not report a history of experiencing incapacitating episodes during the applicable time period and the preponderance of the evidence does not reflect that the Veteran's service-connected lumbar spine disability was manifested by incapacitating episodes of IVDS which required treatment and bed rest prescribed by a physician prior to May 2006.  Therefore, a disability rating higher than 10 percent is not warranted based upon intervertebral disc syndrome or incapacitating episodes.  

In reaching such a conclusion, the Board has considered the Veteran's lay statements regarding his complaints of pain and tenderness in the right iliosacral region; however, such subjective complaints are contemplated in his 10 percent rating.  There is no indication that the Veteran has additional complaints that result in functional loss more nearly approximating a 20 percent rating under the General Rating Formal or the Formula for Rating IVDS Based on Incapacitating Episodes. 

 Initial Rating in Excess of 20 percent for the period beginning May 2, 2006

In applying the foregoing facts to the General Rating Formula, the Board notes that the evidence of record does not reflect that the Veteran has consistently demonstrated forward flexion limited to 30 degrees or less.  Instead, the evidence shows that the Veteran's range of motion has diminished over time, with an inability to flex his back beyond 30 degrees without difficulty on May 10, 2007, with flexion limited to 25 degrees in September 2011.  See March 2007 and April 2011 VA examination reports and VA outpatient treatment records.  

Regarding the period from May 2, 2006, to May 9, 2007, the Board finds that the Veteran's lumbar spine disability is manifested by pain, stiffness, muscular spasms, tenderness to palpation, increased lumbar lordosis, and incapacitating episodes of IVDS of no more than 2 weeks a year, that does not more nearly approximate a functional loss analogous to forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

In this regard, the evidence shows, in May 2006, the Veteran's sacroiliac joints bilaterally were tender to palpation.  The Veteran had stiffness and muscular spasm in the lumbar spine.  Also, the May 2006 VA examination revealed occasional muscle spasms. Additionally, a separate private treatment record shows that the Veteran demonstrated increased lumbar lordosis at rest.  In June 2006, the Veteran's resting posture was characterized by increased lumbar lordosis.  Pain was noted to be 6.5/10 and in the area of the right sacroiliac joint.  Additionally, VA treatment records dated after May 2006 show that the Veteran has continuously complained of pain and tenderness in his low back.  An October 2006 record reflects that the Veteran was disabled for more than two weeks out of any given year by his back disability, which would formerly be treated with bed rest, but such was no longer the standard of care.  

However, at the May 2006 VA examination, the Veteran denied experiencing any stiffness, radiation, or flare-ups associated with his lumbar spine disability.  Objective examination revealed no postural defects.  The Veteran was able to demonstrate forward flexion to 85 degrees with pain at 76 degrees; extension to 25 degrees, right lateral flexion to 11 degrees, left lateral flexion to 22 degrees, and bilateral lateral rotation to 40 degrees.  Repetitive movement did not reveal any fatigability, incoordination, pain, or loss of range of motion, and there was no tenderness to palpation.  Moreover, at the January 2007 VA examination, the Veteran was able to demonstrate forward flexion to 60 degrees with pain, extension to 30 degrees without pain, lateral bilateral flexion to 30 degrees, and lateral bilateral rotation to 30 degrees without pain.  

In reaching such a conclusion, the Board has considered the Veteran's lay statements regarding his complaints of pain, stiffness, muscular spasms, and tenderness to palpation; however, such subjective complaints are contemplated in his 20 percent rating.  There is no indication that the Veteran has additional complaints that result in functional loss more nearly approximating a higher rating under the General Rating Formal or the Formula for Rating IVDS Based on Incapacitating Episodes. 

However, as of May 10, 2007, the Veteran's service-connected spondylosis of the lumbar spine is manifested by pain, stiffness, soreness, muscle spasms, and flare-ups resulting in functional loss analogous to flexion limited to 30 degrees or less, without evidence of ankylosis of the thoracolumbar spine or spine, or incapacitating episodes of IVDS.  In this regard, at the May 10, 2007, VA examination, the Veteran reported that he was unable to walk or stand for extended periods of time due to his back pain.  The examiner noted that the Veteran could not flex beyond 30 degrees without difficulty but that he could "tip" his back to 45 degrees bilaterally and twist to 30 degrees bilaterally.  Additionally, at the September 2007 VA examination, while the Veteran had forward flexion to 65 degrees with pain at 50 degrees, extension to 27 degrees with pain, left and right lateral flexion to 25 degrees with pain, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees with pain, such were ranges of motion were not without pain and he had additional symptomatology of stiffness, spasms, and flare-ups three times a week.  Furthermore, in June 2010, the Veteran had severely limited lumbar spine movement as he was only able to demonstrate forward flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, and left lateral flexion to 10 degrees.  

The Board notes that, in November 2010, the Veteran's range of motion was improved as he had forward flexion to 80 degrees, extension to 15 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees.  However, repetitive movement revealed additional limitation in ranges of motion and he wore a metal shank brace on his back, experienced muscle spasms, and complained of constant soreness and stiffness.  

Moreover, in September 2011, the Veteran could demonstrate forward flexion to 25 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, and left lateral flexion to 25 degrees, with each limited by pain.  The Board again acknowledges an improvement in range of motion testing at the April 2012 VA examination as the Veteran had forward flexion to 90 degrees with no objective evidence of painful motion.  However, he was able to only demonstrate extension to 5 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 15 degrees, all with pain.  

Therefore, in consideration of such findings, as well as the Veteran's lay statements regarding his subjective complaints of pain, stiffness, soreness, muscle spasms, and flare-ups, the Board finds that, as of May 10, 2007, his lumbar spine disability loss more nearly approximates functional loss analogous to flexion limited to 30 degrees or less.  As such, the Board finds that, as of May 10, 2007, but no earlier, the Veteran's service-connected lumbar spine disability warrants a 40 percent rating, but no higher.

In this regard, a rating higher than 40 percent is not warranted because the evidence does not reflect that the Veteran's lumbar spine disability is manifested by unfavorable ankylosis of the entire thoracolumbar spine or the entire spine.  See 38 C.F.R. § 4.71a, General Rating Formula.  Specifically, while the Veteran has demonstrated limitation of lumbar spine motion, there is no evidence that such results in ankylosis.  In fact, the November 2010 VA examiner specifically determined that there was no evidence of ankylosis.  Moreover, there is no evidence of incapacitating episodes of IVDS during the relevant time period. 

In evaluating the Veteran's claim under DeLuca and Mitchell, supra, the Board finds that there is no evidence of additional functional loss that warrants a rating in excess of 20 percent or 40 percent, for the respective periods adjudicated herein.  Therefore, the Board finds that higher ratings are not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45.

In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the grant of an initial rating in excess of 10 percent for service-connected spondylosis of the lumbar spine prior to May 2, 2006, and an initial rating in excess of 20 percent for the period from May 2, 2006, to May 9, 2007.  However, the preponderance of the evidence supports the grant of a 40 percent disability rating, but no higher, for service-connected spondylosis of the lumbar spine as of May 10, 2007.  In making this determination, all reasonable doubt has been resolved in favor of the Veteran.  See Gilbert, 1 Vet. App. at 55.  


Associated Neurologic Symptoms

The Board notes that, when evaluating the disability rating assignable to a spinal disability, consideration must be given to whether a separate rating is warranted for any neurologic abnormalities associated with the spinal disability.   

Under DC 8526, incomplete paralysis of the femoral nerve warrants a 10 percent evaluation when mild, a 20 percent evaluation when moderate, and a 30 percent evaluation when severe.  Complete paralysis of the femoral nerve warrants a 40 percent evaluation where there is paralysis of the quadriceps extensor muscles.  

Under 38 C.F.R. § 4.124a, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, at most, the moderate degree.  The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  

A March 2006 private treatment record reflects that, upon examination, the right sacroiliac joint was tender.  There was mild tenderness to palpation over the lower lumbar spine and the lumbosacral junction.  Neurologic examination was intact.  Achilles reflexes were +2.  Motor and sensory examination was within normal limits.  

In May 2006, the Veteran did not lodge any complaints of radicular back pain and objective examination revealed intact sensation to light touch in the lower extremities bilaterally.  See May 2006 VA examination report.  Private treatment records show that, in May 2006, the Veteran's sacroiliac joints bilaterally were tender to palpation.  The Veteran had stiffness and muscular spasm in the lumbar spine.  Neurological examination was normal and straight leg raising was negative.  In June 2006, a private treatment record reflects that straight leg raising was equivocal bilaterally.  Neurologic examination was distally intact.  Deep tendon reflexes of the Achilles are +2, patella +1.  There was no quadriceps or gastroc atrophy.  Chronic low back pain with degenerative disc disease, mild radiculitis, was diagnosed.  In May 2007, the Veteran reported that he experienced back pain when he pulled his right leg forward but there was no objective evidence of any radicular symptoms at that time.  See May 2007 VA examination report.  

A July 2007 neurologic consultation revealed complaints of pain down the right leg.  There was no bowel/bladder incontinence problems.  Motor examination was 5/5 of the lower extremities bilaterally.  The Veteran was sensitive to light touch and deep tendon reflexes were +2 and symmetric in the bilateral lower extremities.  Straight leg raising, Babinski's, and Hoffman's signs were all negative.  

In September 2007, the Veteran specifically denied having any radiating leg pain and he reported that the radiating anterior right thigh pain he reported in May 2007 only lasted for a week.  The September 2007 VA examiner noted the Veteran did not have a history of neurologic symptoms, such as urinary incontinence, urgency, retention or frequency, nocturia, fecal incontinence, obstipation, erectile dysfunction, numbness, paresthesias, or leg or foot weakness.  Objective examination revealed normal muscle strength, as there was movement against full resistance in the bilateral knees, ankles, and great toes.  There was no evidence of muscle atrophy, as the Veteran's muscle tone was normal.  Likewise, sensory examination revealed normal sensation in the lower extremities to vibration, pain (pin prick), light touch, and position sense.  However, there were diminished reflexes in the lower extremities, as knee jerk was absent in the left leg and hypoactive in the right leg and ankle jerk was hypoactive bilaterally.  See September 2007 VA examination report.  

A December 2007 record reflects the Veteran's current findings suggested the possibility that he had more right hip involvement than lumbar spine involvement.  

At the December 2009 VA examination, the Veteran reported having trouble with his right leg since 2006, including difficulty standing or walking without resulting weakness or shooting pain and occasional numbness down the right leg.  The December 2009 VA examiner noted the Veteran was seen in the VA neurosurgery clinic in July 2007, at which time he reported having low back pain running from his right buttock to his knee posteriorly, but he denied any bladder or bowel incontinence issues.  Objective examination in July 2007 revealed normal motor strength, normal senses to light touch, and normal reflexes in the bilateral lower extremities.  

A peripheral nerves examination was performed in December 2009 during which the Veteran reported having pain in the postereolateral aspect of the right buttock and right thigh to the knee.  Objective examination revealed normal motor strength, with normal sensation in the bilateral upper extremities to vibration, pain, light touch, and position sense.  The Veteran's reflexes were normal in the bilateral knees and ankles, and there was no evidence of muscle atrophy or abnormal muscle tone.  

The December 2009 VA examiner noted that a review of the record revealed a congenital variant of hip bone anatomy, os acetabulae, and has been diagnosed with bilateral hip osteoarthritis.  MRIs were observed to have shown bulging discs, but no nerve compression was obvious.  The Veteran denied bowel and bladder issues.  Following an examination, a review of the record, and an interview with the Veteran, the examiner diagnosed piriformis syndrome and determined that such was not caused by or a result of the Veteran's lumbar spine disability.  Further, he indicated that the Veteran's symptoms of his right hip pain, with claimed radiation to the knee, were unrelated to his back disability as the Veteran had no neural foraminal impingement on the MRI.  Additionally, his physical examination found evidence of a myofascial strain pattern most consistent with piriformis syndrome and some associated gluteus medius dysfunction.  Therefore, the examiner concluded, the pain from the Veteran's muscle issue cannot be attributed to his degenerative disease as such was too mild to cause any nerve issue.  

A February 2010 EMG/NCS revealed normal results.  In this regard, it was noted that such was a normal study and there was no electrophysiologic evidence for a neuropathy or lumbosacral radiculopathy.  At the November 2010 VA examination, objective examination revealed normal reflexes, motor strength, and muscle tone.  

A March 2012 private treatment record reflects that the Veteran has normal muscle bulk and tone in all extremities, with essentially normal muscle strength.  However, there was slightly diminished sensation to pin prick and vibration in his feet, as well as trace and absent reflexes in the knees and ankles, respectively.  

At the April 18, 2012, VA examination, the Veteran reported that, over the previous few months, his low back pain began radiating down his right leg to the knee.  He also reported experiencing numbness and tingling in the low back region.  The Veteran reported that his right leg and back are weak when he experiences pain, but he denied any bladder or bowel incontinence or control issues.  Objective examination revealed normal muscle tone, with no evidence of muscle atrophy.  However, there were no reflexes in the right knee and left ankle, while reflexes were hypoactive in the right ankle and normal in the left knee.  Sensory examination was normal bilaterally in the thigh and knee, lower leg and ankle, and feet and toes.  After examining the Veteran, the April 2012 VA examiner noted that the Veteran has mild right lower extremity radiculopathy manifested by moderate, intermittent pain, mild numbness, and absent right ankle jerk.  The examiner noted that the Veteran's left lower extremity is not affected by radiculopathy.  

Applying the foregoing facts to the law summarized above, the Board finds that, as of April 18, 2012, the Veteran's service-connected spondylosis of the lumbar spine resulted in right lower extremity radiculopathy manifested by no more than a mild sensory and functional impairment, which more nearly approximates a mild disability of the femoral nerve.  However, at no time during the appeal period has the Veteran's service-connected spondylosis of the lumbar spine resulted in neurological impairment other than right lower extremity radiculopathy.

Relevant to any other neurological impairment and the period prior to April 18, 2012, for the Veteran's radiculopathy of the right lower extremity, the Board observes that, while the Veteran had neurological complaints as well as occasional findings of diminished reflexes, such had been attributed to the Veteran's nonservice-connected bilateral hip disorders.  Specifically, as discussed in detail above, the December 2009 VA examiner determined that such symptomatology cannot be attributed to his degenerative disease as such was too mild to cause any nerve issue.  Moreover, a February 2010 EMG/NCS revealed normal results.  In this regard, it was noted that such was a normal study and there was no electrophysiologic evidence for a neuropathy or lumbosacral radiculopathy.  In fact, while the March 2012 private treatment record reflects slightly diminished sensation to pin prick and vibration in his feet, as well as trace and absent reflexes, radiculopathy was not diagnosed until the April 2012 VA examination.  In this regard, such examiner conducted a full neurological examination and determined that the Veteran has mild right lower extremity radiculopathy manifested by moderate, intermittent pain, mild numbness, and absent right ankle jerk, but also indicated that the Veteran's left lower extremity is not affected by radiculopathy.  Furthermore, the Veteran has not alleged, and the evidence does not show, that he has bladder or bowel impairment as a result of his service-connected back disability.  Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected spondylosis of the lumbar spine resulted in neurological impairment other than right lower extremity radiculopathy.  Additionally, the Board finds that such radiculopathy did not manifest until April 18, 2012.  

Moreover, the Board finds that the Veteran's radiculopathy of the right lower extremity warrants no more than a 10 percent rating as such is manifested by no more than a mild sensory and functional impairment, which more nearly approximates a mild disability of the femoral nerve.

In this regard, the evidence shows the Veteran has lodged subjective complaints low back pain radiating down his right leg with occasional numbness; however, despite the Veteran's complaints, sensory examination of the lower extremities has been normal throughout the appeal.  A sensory impairment is not shown until March 2012 when he was noted to have slightly decreased sensation to pin prick and vibration sense in his feet; however, because the sensory impairment is described as a slight decrease and is only noted on pin prick and vibration testing (as opposed to all sensory tests, including light touch and position sense), the Board finds that the Veteran's sensory impairment in his lower extremities is no more than mild.  

In this context, while the evidence consistently shows the Veteran has normal muscle strength and tone in his lower extremities, the evidence shows that his deep tendon reflexes are impaired.  Specifically, in April 2012, objective examination revealed no deep tendon reflexes in the right knee with hypoactive reflexes in the right ankle.  

While there is evidence of diminished reflexes in the right lower extremity, the Board finds probative that the evidence does not show a complete impairment of the reflexes, as objective examination has not revealed completely absent reflexes in the right lower extremity at any point during this appeal.  In addition, the evidence shows that the Veteran maintains normal muscle strength in his  right lower extremity, with normal muscle tone.  Therefore, the Board finds that the Veteran's functional impairment of the right lower extremity is no more than mild.  

In sum, the Board finds that the evidence described above shows that, beginning on April 18, 2012, the Veteran's service-connected lumbar spine disability resulted in right lower extremity radiculopathy manifested by a mild sensory and functional impairment, which more nearly approximates a mild disability as contemplated by DC 8526.     

Therefore, the Board finds that a rating in excess of 10 percent is not warranted.  In reaching such conclusion, the Board has considered the Veteran's subjective neurological symptomatology associated with his right lower extremity radiculopathy.  Indeed, while there is evidence of a mild sensory and functional impairment in the right lower extremity, the sensory impairment does not involve completely diminished senses.  Likewise, the preponderance of the evidence does not show a severe or diffuse functional impairment.  In addition, the evidence also shows that he maintains normal muscle strength and tone in the right lower extremity, with no evidence that his right lower extremity neurologic impairment is manifested by paralysis of the quadriceps extensor muscles.  

As such, the Board finds that the Veteran's right lower extremity neurologic impairment is no more than mild and does not more nearly approximate moderate or severe incomplete paralysis or complete paralysis at any point during the appeal as contemplated by DC 8526.

Therefore, based on the foregoing, the Board finds that the Veteran experiences radiculopathy in his right lower extremity, which is manifested by a mild sensory and functional impairment of the femoral nerve, as of April 18, 2012, but no earlier.  As a result, the Veteran's radiculopathy in the right lower extremity warrants a 10 percent rating, but no higher, under DC 8526 as of April 18, 2012.  In making this determination, all reasonable doubt has been resolved in favor of the Veteran.  See Gilbert, 1 Vet. App. at 55.  

Cervical Spine Disability

Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine was established in January 2012, and the RO assigned an initial noncompensable disability rating pursuant to 38 C.F.R. § 4.71a, DC 5242, effective June 2011.  In September 2012, the RO increased the Veteran's disability rating to 10 percent, effective June 2011.  

The Veteran has disagreed with the initial disability rating assigned to his service-connected cervical spine disability, which is the basis of the current appeal.  

Under the General Rating Formula, the following evaluations are to be assigned for spinal disabilities 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.  A 10 percent evaluation is warranted where there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation will be assigned where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent evaluation is warranted where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula.  Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes.  Id. at Note (1).

The pertinent evidence of record includes August 2011 and April 2012 VA examination reports and VA and private treatment records dated from 2010 to 2012.  

VA treatment records show that the Veteran has continuously complained of pain and diffuse tenderness in his neck.  Private treatment records also show the Veteran sought treatment for right arm numbness and paresthesias in March 2012.  At that time, he reported that his symptoms began in November 2011 and are precipitated by turning his head or sleeping on his right side.  The Veteran denied any loss of function in the right hand or significant weakness, but he stated that the numbness is bothersome.  Objective examination revealed reduced range of motion in his neck, pain to palpation, and slightly reduced reflexes in the upper extremities.  Nevertheless, examination revealed normal muscle bulk and tone in all extremities and his muscle strength was normal.  The diagnostic impression was cervical radiculopathy.  See March 2012 private treatment record.  

At the August 2011 VA examination, the Veteran reported having neck pain and muscle spasms secondary to his lumbar spine disability.  The Veteran reported that his neck pain travels to his mid-back and that he experiences pain every day.  In addition to pain, he also reported having stiffness and weakness.  The Veteran reported having flare-ups of pain that are caused by activity and result in a moderate impairment on his daily activities.  The Veteran was able to demonstrate forward flexion to 45 degrees, extension to 45 degrees, bilateral lateral flexion to 45 degrees, and bilateral lateral flexion to 80 degrees.  Repetition did not result in any additional loss of range of motion, and there was no pain, fatigability, weakness, lack of endurance of incoordination.  

At the April 2012 VA examination, the Veteran reported having constant neck pain, which he reported was a four out of 10.  The Veteran reported that his pain can increase to 10 out of 10 but that the flare-ups are not frequent and occur about two to three times a week.  There was no evidence of incapacitating episodes or intervertebral disc syndrome.  The Veteran was able to demonstrate forward flexion to 40 degrees and extension to 40 degrees, with no objective evidence of painful motion, and he was able to demonstrate right and left lateral flexion to 25 and 20 degrees, respectively, with pain.  He was also able to demonstrate right lateral rotation to 80 degrees with no pain and left lateral rotation to 70 degrees with pain.  There was no additional limitation in range of motion in the cervical spine after repetitive use, and there was no functional loss or impairment.  There was no evidence of guarding, muscle spasm, or muscle atrophy.  

Applying the foregoing facts to the foregoing, the Board finds that the preponderance of the evidence does not support the grant of an initial disability rating higher than 10 percent for the service-connected cervical spine disability.  Indeed, the preponderance of the evidence does not reflect that the Veteran has demonstrated forward flexion to between 15 and 30 degrees, even as a result of pain, or any of the other symptoms contemplated by the 20 percent rating for a cervical spine disability under the General Rating Formula.  

In addition to the foregoing, the evidence does not reflect that the Veteran's range of motion is limited to 15 degrees or less or favorable ankylosis of the cervical spine, as there is no evidence showing that the Veteran's spine is fixed in flexion or extension.  Instead, the evidence shows that the Veteran has demonstrated forward flexion limited to no less than 45 degrees and that the Veteran is able to demonstrate movement in all planes of excursion.  

Therefore, the Board finds that the symptoms reflected above do not more nearly approximate the level of disability contemplated by a rating higher than 10 percent under the General Rating Formula.  Therefore, a rating higher than 10 percent is not warranted for the Veteran's service-connected cervical spine disability under the General Rating Formula.

In evaluating the Veteran's claim under DeLuca and Mitchell, supra, the Board notes that the Veteran reported having flare-ups of pain and manifested painful motion on objective examination.  While the physicians who have evaluated the Veteran during the appeal period did not estimate the Veteran's additional functional limitation during reported flare-ups; however, the Board finds no prejudice to the Veteran because the VA examiners noted whether there was objective evidence of painful motion, as well as whether there is additional limitation after repetitive motion.  In addition, there is no evidence showing any additional functional impairment or limitation as a result of pain or other symptoms.  Therefore, the Board finds that any additional functional impairment experienced by the Veteran is contemplated by the 10 percent rating currently assigned, as there is no lay or medical evidence that shows the Veteran's flare-ups or repetitive motion has resulted in any additional impairment beyond what is contemplated by the disability rating currently assigned.  Therefore, the Board finds that an increased rating is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45.

The Board has considered whether a rating higher than 10 percent may be granted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  However, there is no lay or medical evidence that shows, during the applicable time period, the Veteran's service-connected cervical spine disability was characterized by IVDS or incapacitating episodes thereof which required treatment and bed rest prescribed by a physician.  Therefore, a disability rating higher than 10 percent is not warranted based upon intervertebral disc syndrome or incapacitating episodes.  

The Board notes that, when evaluating the disability rating assignable to a spinal disability, consideration must be given to whether a separate rating is warranted for any neurologic abnormalities associated with the spinal disability.  In this case, the Veteran has reported that his neck pain radiates down his back, and the evidence reflects that he has also sought treatment for right arm numbness and paresthesias, which was diagnosed as cervical radiculopathy.  See August 2011 VA examination report; March 2012 private treatment record.  There is no lay or medical evidence of any radicular symptoms involving the Veteran's left arm.  Instead, the Veteran has only reported experiencing numbness and tingling in his right arm.  See March 2012 private treatment record.  

While there are subjective complaints of numbness and tingling in the right arm, sensory examination has been consistently normal throughout the appeal period, with no evidence of decreased sensation to pin prick, temperature, position sense or vibration.  See VA examination reports dated August 2011 and April 2012; March 2012 private treatment record.  The Veteran is competent to report the nature of his current symptoms; however, in evaluating this claim, the Board finds probative that these symptoms have not been identified on objective examination at any point during the appeal period and, thus, are not consistent with the preponderance of the evidence.  

In addition, the preponderance of the evidence does not reflect that there is a functional impairment in the right upper extremity as a result of any radicular symptoms.  In this regard, the private physician who evaluated the Veteran in March 2012 noted that deep tendon reflexes were 1+ and symmetric in the upper extremities, which represents a slight functional impairment.  However, there is no evidence of reduced or impaired reflexes in the upper extremities at the August 2011 and April 2012 VA examinations, which were comprehensive examinations that included detailed sensory and motor examinations.  Therefore, the findings reported in the March 2012 private treatment records are not considered consistent with the preponderance of the evidence.  Furthermore, the April 2012 VA examiner specifically determined that there was no cervical radiculopathy present.

Therefore, while there are subjective complaints of radicular symptoms in the right upper extremity and an isolated notation of slightly decreased reflexes in the right upper extremity, the Board finds the preponderance of the most competent, credible, and probative evidence of record does not reflect that the Veteran experiences radiculopathy in the right upper extremity, or any other neurologic symptoms, as a result of his service-connected cervical spine disability which warrants a separate, compensable rating.  

In making this determination, the Board has considered whether the Veteran's subjective complaints and the notation of slightly decreased reflexes approximates a "mild" paralysis disability as contemplated by the rating criteria for peripheral nerves but, as noted, the Board finds the lack of objective evidence of a sensory impairment in the right upper extremity, as well as the lack of evidence showing a chronic functional impairment in the right upper extremity, preponderates against any such finding.  Indeed, the preponderance of the lay and medical evidence of record does not establish that there is a sensory or functional; impairment caused by any radicular symptoms in the right upper extremity.  Therefore, a separate, compensable rating is not warranted for any neurologic symptoms associated with the service-connected cervical spine disability.  See 38 C.F.R. § 4.124a, DCs 8510 to 8512 (2012).  

In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the grant of an initial disability rating higher than 10 percent for service-connected degenerative joint disease of the cervical spine.  In making this determination, all reasonable doubt has been resolved in favor of the Veteran.  See Gilbert, 1 Vet. App. at 55.  

Final Considerations

The Board has considered whether staged ratings under Fenderson, supra, in addition to those already assigned, are appropriate for the Veteran's service-connected lumbar spine with right lower extremity radiculopathy and cervical spine disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning additional staged ratings for such disabilities is not warranted.  

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under  3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine with right lower extremity radiculopathy and cervical spine disabilities with the established criteria found in the rating schedule.  The Board finds that the spine disabilities at issue is fully addressed by the rating criteria under which such disabilities are rated.  In this regard, the Veteran's lumbar spine has been assigned staged ratings, representing the increase in his symptoms over the years.  Moreover, the current 40 and 10 percent ratings assigned contemplate the overall functional loss from the Veteran's symptomatology attributable to his back and neck disabilities, respectively, to include limitation of motion, pain, spasms, etc, as detailed above.  Moreover, a separate 10 percent rating has been assigned so as to compensate him for his neurological impairment associated with his right lower extremity radiculopathy.  There are no additional symptoms of his service-connected lumbar and cervical spine disabilities that are not addressed by the rating schedule.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his service-connected spine disorders.  As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In the instant case, the claim for a TDIU is already on appeal and will be addressed in the Remand section of the decision.  


ORDER

Prior to May 2, 2006, an initial rating in excess of 10 percent for service-connected spondylosis of the lumbar spine is denied.  

For the period from May 2, 2006 to May 9, 2007, an initial rating in excess of 20 percent for service-connected spondylosis of the lumbar spine is denied.  

As of May 10, 2007, an initial 40 percent rating, but no higher, for service-connected spondylosis of the lumbar spine is granted, subject to applicable law and regulations governing the award of monetary benefits.  

As of April 18, 2012, a separate 10 percent rating for radiculopathy of the right lower extremity is granted, subject to applicable law and regulations governing the award of monetary benefits.  

An initial rating in excess of 10 percent for service-connected degenerative joint disease of the cervical spine is denied.  


REMAND

It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012).  Rating boards should also submit to the Director, Compensation and Pension Service, for extra-schedular consideration of all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  38 C.F.R. § 4.16(b).  

Currently, and taking into account the increased ratings granted herein, the Veteran is service-connected for depressive disorder, rated as 30 percent disabling; spondylosis of the lumbar spine, rated 40 percent disabling; right lower extremity radiculopathy, rated 10 percent disabling; tinea corporis, rated 10 percent disabling from January 1997, and degenerative joint disease of the cervical spine, rated 10 percent disabling.     

The Veteran has consistently reported that he is unable to work as a result of his back pain.  He has also reported that his depression affects his ability to work.  See May 2007 VA examination report.  The evidence shows that the Veteran's service-connected lumbar and cervical spine disabilities affect his ability to work, as several physicians have noted the effects the Veteran's spinal disabilities have on his daily and occupational functioning.  In this regard, the May 2007 VA examiner noted that the Veteran has difficulty standing, walking, sitting, or climbing stairs due to back degeneration, which the examiner stated causes difficulty for the Veteran to perform a job requiring any significant activity.  Likewise, objective examination has revealed that the Veteran's lumbar spine disability would result in decreased mobility, problems with lifting or carrying, difficulty reaching, lack of stamina, or weakness or fatigue.  See November 2010 VA examination report.  

While the evidence shows that the Veteran's service-connected lumbar spine and cervical spine disabilities have an effect on the Veteran's ability to work and perform activities of daily living, it does not appear that a medical professional has considered whether all of the Veteran's service-connected affect his employability or, in the alternative, whether the service-connected disabilities in combination render him unemployable.  Indeed, the May 2007 VA examiner appears to have only considered the Veteran's lumbar spine disability, while the November 2010 VA examiner only considered his lumbar and cervical spine disabilities.  Neither examiner considered the Veteran's other service-connected disabilities, i.e., depression or tinea corporis, and there is no medical evidence or opinion of record that addresses whether the, now, service-connected radiculopathy of the right lower extremity effects his employability.  

The Board may not reject a claim for a TDIU without producing evidence that, despite the Veteran's service-connected disabilities, he can perform work that would produce sufficient income to be other than marginal.  See e.g., Friscia v. Brown, 7 Vet. App. 294 (1994).  Therefore, the Board finds that, on remand, a medical opinion should be obtained that addresses whether the Veteran's service-connected disabilities, individually or in combination, render him unemployable.  


Accordingly, the case is REMANDED for the following action:

1.  Request that an appropriate VA physician review the entire claims file and provide an opinion regarding the following.  

The reviewing physician should describe the functional effects caused by each the Veteran's service-connected disabilities.  

The physician should then comment on the impact the Veteran's service-connected disabilities have on his employability by specifically providing an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, including depression, spondylosis of the lumbar spine, DJD of the cervical spine, tinea corporis, and radiculopathy of the right lower extremity, either singularly or jointly, render him unable to secure and follow substantially gainful employment.  In offering such opinion, the examiner should not take into consideration factors other than the Veteran's service-connected disabilities (i.e., age or nonservice-connected disabilities).

The examiner is advised that he or she may not consider a disability service-connected prior to the effective date of the grant of service connection.  Specifically, the examiner may not consider the service-connected depression prior to March 6, 2007; spondylosis of the lumbar spine prior to December 14, 2004; DJD of the cervical spine prior to June 23, 2011; tinea corporis prior to October 1977; and radiculopathy of the right lower extremity prior to April 18, 2012.


If the examiner is unable to provide the requested opinion without, first, evaluating the current severity of all of the service-connected disabilities, an appropriate examination(s) should be conducted.  Likewise, if the examiner the examiner determines that he or she cannot offer an opinion on the Veteran's employability without a Social and Industrial Survey, such should be performed.  

All opinions expressed must be accompanied by supporting rationale.  

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's TDIU claim should be readjudicated based on the entirety of the evidence, including consideration of entitlement to TDIU on an extra-schedular basis, if necessary.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, with an appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs