Citation Nr: 1308907 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-01 027 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for limitation of motion due to degenerative disease of the cervical spine, status post C5-6 anterior cervical discectomy and fusion (referred to below as cervical spine disability) for the period from December 14, 2004, to August 2, 2005, and November 1, 2005, to October 18, 2010. 2. Entitlement to a rating in excess of 30 percent for limitation of motion due to cervical spine disability from October 18, 2010, forward. 3. Entitlement to a separate rating in excess of 10 percent from December 7, 2005 to January 6, 2012, for neurological impairment associated with cervical spine disability, currently characterized as neurologic deficit of the left upper extremity. 4. Entitlement to a separate rating in excess of 10 percent for neurological impairment associated with cervical spine disability, currently characterized as neurologic deficit of the left upper extremity from January 6, 2012, forward. 5. Entitlement to a separate rating in excess of 10 percent for neurological impairment associated with cervical spine disability, currently characterized as neuralgia of the right upper extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty form April 1996 to October 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Roanoke RO in November 2005, which was confirmed and continued in April 2006. The Veteran testified before an April 2010 Central Office and a transcript of this hearing is associated with the claims file. The increased rating claim on appeal has been separated into several issues for clarity due to multiple staged ratings and separate ratings for associated disabilities. The rating decisions of November 2005 and April 2006 denied a rating in excess of 10 percent for the service-connected cervical spine disability, but the November 2005 rating decision assigned a temporary total rating for the period from August 3, 2005 to October 31, 2005 based on a period of convalescence after surgery related to the Veteran's disability. A January 2007 rating decision increased the rating of the cervical spine disability to 20 percent, effective December 14, 2004, exclusive of the period in which the temporary total rating was in effect. In this decision, the RO also granted a separate rating of 10 percent for neurological impairment of the left upper extremity associated with the service-connected cervical spine disability, effective December 7, 2005. In a February 2009 rating decision, a separate rating of 10 percent was granted for right upper extremity neuralgia associated with the service-connected spine disability, effective August 4, 2008. After the Board remanded the case in May 2010, the Appeals Management Center (AMC) increased the rating of the cervical spine disability to 30 percent, effective October 18, 2010. After a second remand by the Board in December 2011, A September 2012 rating decision increased the rating of the left upper extremity neurological impairment to 20 percent, effective January 6, 2012. The Veteran has continued her appeal for a higher rating. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the contents of the Veteran's Virtual VA file and found medical evidence pertinent to this appeal that was considered by the AMC but that is not in the claims file - consideration by the Board of this evidence will not prejudice the Veteran as the evidence was addressed by the RO. The issue of a separate rating in excess of 10 percent for right upper extremity neuralgia associated with the service-connected cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. From December 14, 2004, to August 2, 2005, and from November 1, 2005, to October 18, 2010, the cervical spine disability is manifested by limitation of motion with forward flexion limited to no greater than 25 degrees and occasional flare-ups; favorable ankylosis of the cervical spine or incapacitating episodes totaling at least 4 weeks during the past 12 month periods are not shown. 2. Beginning October 18, 2010, the cervical spine disability is manifested by limitation of motion, but ankylosis or incapacitating episodes totaling at least 4 weeks during the past 12 month period are not shown. 3. From December 7, 2005 to January 6, 2012, the left upper extremity neurologic impairment is shown to be productive of mild incomplete paralysis manifested by subjective complaints of pain, tingling, and numbness; moderate incomplete paralysis is not shown. 4. Beginning January 6, 2012, the left upper extremity neurologic impairment is shown to be productive of no greater than moderated incomplete paralysis manifested by subjective complaints of pain, tingling, weakness, and numbness; severe incomplete paralysis is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent from December 14, 2004, to August 2, 2005, and November 1, 2005, to October 18, 2010, for the cervical spine disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5241, 5242 (2012). 2. The criteria for a rating in excess of 30 percent beginning October 18, 2010, for the cervical spine disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5241, 5242 (2012). 3. The criteria for a rating in excess of 10 percent from December 7, 2005 to January 6, 2012 for left upper extremity neurologic deficit associated with the cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8516 (2012). 4. The criteria for a rating in excess of 20 percent beginning January 6, 2012 for left upper extremity neurologic deficit associated with the cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8516 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. DUTIES TO NOTIFY AND ASSIST The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A November 2005 letter provided the Veteran with notice of VA's duties to notify and assist her in the development of her claim consistent with the laws and regulations outlined above. The letter informed her of the evidence and information necessary to substantiate her claim, the information required of her to enable VA to obtain evidence in support of her claim, the assistance that VA would provide to obtain information and evidence in support of her claim, and general notice regarding how disability ratings are assigned. VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are associated with her claims file, and VA has obtained all pertinent/identified records that could be obtained. A May 2009 memorandum states that appropriate procedures were followed and that the Veteran's Social Security records are not available for review. In compliance with the Board remands in May 2010 and December 2011, the AMC considered in the first instance newly submitted evidence, as requested by the Veteran, additional pertinent treatment records were obtained and associated with the claims file, and the Veteran was afforded another VA examination. The VA examinations are adequate for rating the disabilities. See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. MERITS OF THE CLAIM Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is to be considered in the evaluation of service-connected disabilities. 38 C.F.R. § 4.1 (2012). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See generally Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). A December 2004 VA treatment record indicates the Veteran reported that she awoke 4 days earlier with an inability to move her head to the right or left side due to pain. There was no radiation of pain or tingling or numbness down the upper extremities. She reported that this occurred every two months and that it had been treated with Ibuprofen. A February 2005 VA treatment records included magnetic resonance imaging (MRI) findings revealed scoliosis and reversal of the normal cervical lordosis; mild degenerative disc disease with disc dessication, and mild disc space narrowing. There was a normal signal within the visualized spinal cord. April 2005 records show that she continued to have back pain between her shoulder blades that worsened with bending her neck down and with writing. It was relieved with rest and Motrin. She recently noticed that she dropped items more frequently, but there was no frank weakness and/or numbness. There were occasional tingling sensations in her fingertips. Traction and nonsteriodals had failed and her pain occurred every month and was as high as 9/10 in intensity when it occurred. On examination, there was no muscle atrophy, motor strength in the upper extremities was 5/5, and reflexes were brisk and 3/4. She had a mild tingling sensation in the right C7 distribution. A July 2005 consultation with a private physician shows that the physician was unable to identify any specific radiculopathy related to the disc herniation, but he still believed she had secondary symptoms. He recommended that all conservative treatment be exhausted before choosing surgery. On December 2005 VA examination, the Veteran reported having numbness and tingling in her fingertips that improved significantly since her surgery. There was also pain between her shoulder blades and in her upper neck. Exacerbations of pain lasted 2 to 3 days and they were caused by neck movement in "extreme flexion." When her neck symptoms were particularly bad, she also had decreased range of motion. There were no bowel or bladder complaints. The Veteran had been wearing a neck brace as part of post-operative protocol, but she had been gradually reducing its use. She did not have any difficulties with activities of daily living. On examination, the range of active and passive motion of the cervical spine was extension to 30 degrees with pain at the last 3 to 4 degrees; flexion to 45 degrees with pain between 40 and 45 degrees; bilateral lateral bending to 30 degrees without pain; bilateral rotation to 80 degrees without pain. There was no obvious fatiguing with 4 cycles of range of motion. The neurological examination revealed 2+ symmetric biceps reflexes and brachioradialis reflexes. Her sensation to light touch was decreased in the C6 distribution in her left upper extremity. Strength in the upper extremity was 5/5. March 2006 X-rays of the cervical spine revealed straightening of normal lordosis, but the alignment of the cervical spine seemed intact. The Veteran submitted employment records from January 2005 to April 2006 that show the hours of leave she used; however, the records do not designate the specific reasons for taking leave. Employment records from March 2007 to July 2010 show that on 20 occasions she used less than full days of leave for reasons that included her back; there were 4 additional days for which the reason for leave was not specified. The records also show that she took 18 full days of leave for reasons that included her back and on only one occasion did she state bed rest was involved. There were several days in 2007 for which she took leave but the reasons were not specified. A November 2007 VA neuromuscular clinic note contains range of motions studies of the neck. Flexion was to 45 degrees, extension was to 40 degrees, left lateral flexion was to 30 degrees, right lateral flexion was to 35 degrees, left rotation was to 60 degrees, and right rotation was to 55 degrees. A November 2007 VA record from the emergency department shows that the Veteran presented with neck and upper back pain after falling and hitting her head on a couch. She felt a crushing sensation in her neck since the incident and had had worsening neck pain when she tried to extend it. However, there was no evidence of muscle weakness or numbness and there was full range of motion of the neck and shoulders. Tenderness was noted over the cervical spine and there was muscle spasm over the left deltoid. Muscle strength, sensation, and deep tendon reflexes in the upper extremities were normal. A neurology outpatient record that same month shows that she reported having pain and stiffness in her neck and upper back. She rated the pain as 6/10 in intensity and it affected her sleep, appetite, energy, physical activity, mood, and activities of daily living. Range of motion studies revealed flexion was to 45 degrees, extension was to 40 degrees, left lateral flexion was to 30 degrees, right lateral flexion was to 35 degrees, left rotation was to 60 degrees, and right rotation was to 55 degrees. On November 2007 QTC VA examination, the Veteran complained of stiffness of the neck and arms, and weakness of both hands. There was constant pain between her shoulders that she rated as 8 in intensity. She reported having 3 incapacitating episodes per year that lasted for 4 days. Over the last 12 month period she had 3 episodes that lasted a total of 12 days. She added that a physician had recommended the bed rest. The Veteran did not have an abnormal gait and on physical examination there was no evidence of radiating pain on movement, muscle spasm, tenderness, or ankylosis of the cervical spine. Range of motion studies showed that flexion was to 35 degrees, extension was to 30 degrees, bilateral lateral flexion was to 30 degrees and bilateral rotation was to 80 degrees. Pain began at the end ranges. There was no additional limitation after repetitive use. There was symmetry of spinal motion with abnormal curvature of the spine of decreased cervical lordosis. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Neurologically, there was normal motor function, sensory function, and reflexes in the upper extremities. The examiner reported that he did not observe a large sensory loss of the left upper extremity in the C6 distribution to light touch or pin-prick, but that finer testing could show some sensory decrement. A July 2008 VA treatment record notes the Veteran's complaints of increased neck pain rated 7/10 in intensity that worsened with raising her arms above head level, brushing her hair, or turning her head from side to side. Medication had helped her pain. On August 2008 QTC VA examination, the Veteran complained of spine stiffness, weakness, numbness, and constant pain that was rated 8 in intensity. Pain was sometimes elicited by physical activity and stress, and was relieved by rest and medication. At times of pain she could function with medication and she did not have any incapacitation as a result of her disability. On physical examination, there was as level scar at the surgical site that measured 4 cm by .4 cm. The scar had hyperpigmentation of less than 6 square inches and there was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, or abnormal texture. Her posture was within normal limits. Ranges of motion studies were normal and showed no evidence of ankylosis. Flexion, extension, and bilateral lateral flexion were to 45 degrees and bilateral rotation was to 80 degrees. With flexion, extension, and bilateral flexion pain began at 40 degrees. With bilateral rotation, pain began at the end range. The joint function of the spine was not additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance, or incoordination. There was symmetry of spinal motion with normal curvatures. Regarding intervertebral disc syndrome, there was no cervical motor weakness. The left upper extremity reflexes revealed biceps and triceps jerk 2+. Neurological examination revealed no motor dysfunction. X-rays revealed status post anterior fusion at C5-C6 level. There was solid bony union at the site of prior fusion. The remainder of the levels throughout the cervical spine was normal. A January 2010 private treatment record shows that the Veteran reported having increased symptoms over the past several months. Activities that aggravated her pain were lying on her back or stomach, sitting, standing, rising from sitting, walking, driving, coughing or sneezing, bending forward, and light or heavy exercise. On examination, cervical range of motion was full in extension but she could only bring her chin to 3 inches from her chest. Lateral flexion was stiff and limited and she complained of discomfort. There was tightness in her upper trapezius muscles and sensitivity to slight touch. There was also pain with retraction of her shoulder blades. Left upper extremity reflexes were brisk and sensation was diffusely decreased to light touch and pinprick in the mid forearm and distal in her hand. A February 2010 private treatment record notes the Veteran's complaints of neck pain, muscle spasms, and difficulty in moving her left arm. The physical therapist noted that the Veteran tended to rotate her back rather than her head to look from side to side. Range of neck motion studies revealed approximately 25 degrees of flexion, 20 degrees of extension, and 45 degrees of bilateral rotation. There was significant muscle tightness in the left levator scapula, upper trapezius, and scalene. Mild to moderate tightness was found on the right in the same musculature. Range of motion of both upper extremities was within normal limits actively, but she did report pain with upper extremity movement. Progress notes in February and March 2010 show no significant improvement. A March 2010 private treatment record indicates that the Veteran's mild left foraminal stenosis was not likely contributing much to her symptoms and that the mild disc osteophyte complex and mild stenosis were not likely enough to cause much of her overall symptoms. An EMG study revealed normal bilateral median nerve, left ulnar, and radial sensory studies were normal. There was no evidence of cervical radiculopathy involving the left upper extremity motor axons. In April 2010, the Veteran testified that her symptoms included neck stiffness, constant pain between her shoulder blades, muscle spasms, and numbness and tingling in her hands. She tried physical therapy but it was unsuccessful. Over the previous 12 months she had 4 incapacitating episodes that lasted for 4 days each. The most recent episode was between December 2009 and January 2010. There were other occasions when she was not prescribed bed rest but did lose time from work. Over the past 12 month period she missed 20 days of work. She also stated that her pain radiated up and down to other parts of her body. The Veteran's husband testified that sometimes she had to be driven to work by someone else because she could not turn her head sufficiently to drive safely. He also observed her having trouble sleeping. A May 2010 VA emergency department record indicates the Veteran reported having a 3 day history of pain that radiated from her back to arms with pain worse in the left arm. She denied having bowel or bladder dysfunction. A May 2010 private treatment record notes the Veteran's complaints of neck pain and a tingling sensation in the left upper extremity. On examination, strength and sensation were grossly intact, and there was mild discomfort with cervical motion and mild tightness in the upper trapezius muscles. A June 2010 Neurosurgery consult note shows that the Veteran complained of ongoing neck and left arm pain, as well as right arm pain, which radiated to all fingers in both hands. The pain was worse on the right. She denied having any bowel or bladder changes. On examination, her arm strength was 5/5 and there was patchy sensation impairment at the left arm in the C6-C7 distribution. There were no pathological reflexes. In July 2010, she was seen at the pain management center due to complaints of cervical spine pain that radiated to the left upper extremity and caused hand numbness and tingling that included the fingers. The sensory examination was normal to light touch in the left upper extremity and motor strength was 5/5. The range of motion of the left upper extremity was normal and deep tendon reflexes were normal. A July 2010 letter from a private physician indicates the Veteran was seen for medical reasons and that she was not to return to work until the following week. A VA doctor also excused the Veteran from work for 2 days in July 2010 beginning on the date the private physician cleared her to return to work. On October 2010 VA examination, the Veteran's medical history was noted. She reported that her spine disability caused severe flare-ups on a weekly basis that lasted for hours. She alleged that these episodes were precipitated by excess neck movement, lifting items with her arms, and twisting movements. She denied bowel or bladder problems, but indicated that there was fatigue, decreased motion, stiffness, weakness, spasms, spine pain. There was radiation of the pain into the C5-6 distribution of the fingers and thumb. The severity of the pain was moderate, although constant. Head posture was normal and there was no cervical spine ankylosis. There was evidence of bilateral guarding and tenderness. Spasms and weakness were on the left and painful motion was on the right. Range of cervical spine motion was flexion to 10 degrees, extension to 5 degrees, left lateral flexion to 30 degrees, left lateral rotation to 20 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 30 degrees. There was objective evidence of pain following repetitive motion but there was no additional limitation after repetition. Reflex examination findings were normal bilaterally. Sensory testing of the left upper extremity showed decreased pain on pinprick, light touch, and dysesthesias in the C5-6 distribution in the fingers. Motor testing was normal in both upper extremities. The Veteran reported that she missed 5 weeks of work during the previous 12 month period due to neck pain. She had occasional difficulty putting on top garments while dressing. In the previous month she changed jobs from working in food services to laundry duty due to the strenuous nature of the work. She had only occasional difficulty on her current job but admitted to losing 2 days of work due to neck pain. A July 2010 VA Pain Management Center note located in the electronic file notes the Veteran's complaints of cervical pain with neck movement that radiated to the arms - greater on the left; and causing numbness and tingling in the hands and all fingers. She rated her pain as 5/10 and indicated that it was always present. On motor examination, motor strength was 5/5, deep tendon reflexes were normal, and range of motion in all extremities was normal. Sensory testing was normal to light touch in all extremities. There was limitation of cervical motion. A February 2011 VA treatment record located in the electronic file shows that the Veteran had pain with range of motion in all planes. However, there was full range of motion of both shoulders, elbows, and wrists; bilateral upper extremity strength was 5/5; there was decreased sensation to light touch throughout the entire left upper extremity; and deep tendon reflexes were 2+. A July 2011 VA EMG clinic record located in the electronic file notes her complaints of bilateral upper extremity numbness that was greater on the left. She denied weakness but endorsed neck pain. The sensory examination showed decreased sensation to light touch and pinprick of the left hand, forearm, and arm. Bilaterally, muscle strength was 5/5 and deep tendon reflexes were 3+. The summary of findings indicated that nerve conduction studies of the left upper extremity revealed that the median, ulnar, and radial sensory nerves were normal. Medial motor and ulnar nerves were also normal. Selected muscles in the upper left extremity were tested for cervical radiculopathy and were found to be normal. Overall, the study was normal. A December 2011 VA treatment record located in the electronic file notes complaints of neck pain, left arm weakness, and muscle spasms. The Veteran reported that she could not raise her left arm past 90 degrees unassisted and that there was also numbness and tingling in the arm. It was noted that none of these symptoms were new. On examination, there was left cervical spine paraspinal and trapezius muscle tenderness. The left upper extremity muscles were 4/5, motor strength was 5/5, and deep tendon reflexes were 2+. Later that month she had cervical paraspinal tenderness very sensitive to touch; there was no muscle weakness or sensory changes and neurologically she was grossly intact. A December 2011 MRI of the cervical spine located in the electronic file indicates that there was no significant change since the last MRI in May 2010. Intervertebral disc space heights were well-maintained and the neural foramina remained patent. On January 2012 VA examinations, the Veteran reported that her neck pain worsened acutely over the past 2 months after playing with her children. She reported being unable to lift her left arm due to weakness and that her left arm, neck, and left side of her face tingled. She was on multiple medications and unable to drive herself to work. She previously switched from working in the cooking department to laundry department of a federal prison due to difficulties in the prior job, but she still had some heavy tasks with the new job. In the former job she had trouble opening steel doors, searching inmates, lifting over 5 pound items, and pulling carts. In the current job, she still had to pat down inmates, but only occasionally pulled carts with duffle bags full of laundry. Other work activities that caused neck pain were pulling on doors that were stuck, and reaching up and pulling clothes off shelves. Her husband drove her to work because she could not turn her head sufficiently while driving and she had difficulty with her left arm. She had pain while sleeping if she rolled over onto her left side and when she "holds her head down" it produced left arm pain and tingling. The Veteran reported that she could not do some household chores. While she reported being on bed rest but this did not appear to the examiner to be prescribed by a physician. Her physician recommended avoiding heavy lifting and strenuous exercise. The Veteran also reported having flare-ups that had worsened during the past 2 months and has worse neck pain for 3 weeks after sleeping the "wrong way." From October to November she missed 57 hours of work and she took 2 days off in December due to neck pain. Range of motion tests revealed flexion to 15 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 20 degrees. However, there was no objective evidence of painful motion in any planes tested. With repetition there was no decrease in the ranges of motion. Her functional loss and/or impairment of the cervical spine involved less movement than normal, weakened movement, and pain on movement. There was localized tenderness or pain to palpation of the cervical spine, and guarding or muscle spasms that was not severe enough to result in abnormal gait or spinal contour. Left upper extremity muscle strength was normal. Muscle atrophy was noted in the posterior left should but it could not be measured. Deep tendon reflexes of the left upper extremity were normal, but sensory testing revealed decreased sensations in the shoulder area (C5), inner/outer forearm (C6/T1), and hand/fingers (C6-C8). Her symptoms were severe left upper extremity pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Strength and reflex examinations were normal. Nerve roots involved were C5-C6 upper radicular group. The left arm was moderately affected by radiculopathy. There were no neurologic abnormalities such as bowel or bladder problems. The Veteran had IVDS but no incapacitating episodes over the past 12 months. The examiner noted that the service-connected neck disability initially involved C5-C6 and that in November 2011 an MRI revealed additional disc herniation of C4-C5. Although this was not a part of the original service injury, the examiner explained that the Veteran had disc fusion in 2005 and that it is well known that after cervical fusion adjacent levels above and below are at increased risk for degeneration due to altered body mechanics. Thus, the examiner considered the C4-C5 herniated disc to be a result of the prior cervical fusion surgery. The examiner added that the Veteran's current condition was acute and that it would likely improve with treatment and therapy. A January 2012 VA neurosurgery clinic record located in the electronic file indicates the Veteran reported no longer having pain in her neck or arms, instead she had numbness in her neck, left arm, and both legs. The pain symptoms had lasted for 2 months and then gradually changed to numbness. She also reported having loss of strength in the left upper extremity. A number of other symptoms were also reported regarding other parts of her body. She reported that her symptoms had been intermittent for years and that they worsened on November 28, 2011. On examination, she was able to put on a heavy jacket using both arms without difficulty. Strength in the upper extremities was 4/5 in biceps, triceps, deltoid, wrist flexor, and grip. Strength was 5/5 in lateral intrinsic finger strength, thumb opposition, and left wrist extensor. Deep tendon reflexes were non-hyperreflexic. The examining neurosurgeon indicated that the Veteran had several complaints and that none of them could be attributed to her cervical spine. The source of her facial, neck, left upper extremity numbness, and left upper extremity weakness was unclear. A. Cervical Spine The Veteran contends that her cervical spine disability is more disabling than reflected in the current ratings. The Veteran's cervical spine disability is rated under Code 5243-5241. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2012). Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 height warrants a 10 percent disability rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent disability rating. Forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine warrants a 30 percent disability rating. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a. Any associated objective abnormalities such as bowel or bladder impairment are to be rated separately under an appropriate Diagnostic Code. See Note (1) of General Rating Formula. Because the General Formula is identical for all Diagnostic Codes pertaining to the spine other than for intervertebral disc syndrome, consideration of other relevant diagnostic codes pertaining to the spine is not required. See 38 C.F.R. § 4.71a, Codes 5235, 5236, 5238, 5239, 5240, 5241, 5242 (2012); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Intervertebral disc syndrome should be evaluated either under the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. In this matter, as there are some symptoms indicative of intervertebral disc syndrome, the Board will consider the pertinent criteria for intervertebral disc syndrome. For the periods from December 14, 2004 to August 2, 2005 and November 1, 2005 to October 18, 2010 a 20 percent rating is in effect for the cervical spine disability. In order to assign a higher rating, the evidence must at least show limitation of forward flexion to 15 degrees or less, demonstrate unfavorable ankylosis of the cervical spine, or approximate these criteria due to other factors such as those noted in DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence does not show unfavorable ankylosis and limitation of motion reduced to no greater than 25 degrees in forward flexion. See the February 2010 VA treatment record and VA examinations in November 2007 and August 2008. The evidence does not support a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). With repetitive motion, there was no additional reduction in forward flexion or evidence of obvious fatigue. See December 2005, November 2007, and August 2008 VA examination reports and VA treatment records in November 2007 and May 2010. The evidence also does not support a finding of muscle weakness or numbness. See the November 2007 VA treatment record and the August 2008 VA examination report. During periods of exacerbation when pain was significantly increased, the Veteran reported additional limitation of motion. See the December 2005 VA examination report. However, the degree of limitation has not been quantified or demonstrated during treatment or examinations. Furthermore, these periods are not shown to be so frequent and of such lengthy duration to warranted an increase in the rating. The Veteran has had ongoing complaints of pain, stiffness, tenderness, weakness, and numbness over the years, but not all of her symptoms are attributable to her service-connected disability. See the March 2010 private treatment record and the January 2012 VA treatment record. However, there is substantial indication that the Veteran may not be completely credible in the severity of her complaints, as numerous examiners have so commented. See, e.g., January 2012 report. To the extent that some of her symptoms, such as pain and stiffness, are related to the disability, they have they are considered as part of the current 30 percent rating. The Board has considered whether a higher rating is assignable if the disability is rated alternatively based on incapacitating episodes of intervertebral disc syndrome. To do so, the evidence must show that the cervical spine disability resulted in incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 month period. At most, the Veteran's reports of incapacitating episodes over a 12 month period have combined to fewer than 3 weeks. See the November 2007 VA examination and the April 2010 hearing testimony. Although she testified that it was prescribed bed rest, this is not reflected in the medical records. Nevertheless, even if accurate, her reported days of incapacitation are insufficient to assign a higher rating at any time. A 30 percent rating is assigned, effective October 18, 2010. In order to assign a higher rating during this period, the evidence must at least show unfavorable ankylosis of the entire cervical spine or approximate disability of this degree based on additional factors such as those outlined in DeLuca. Here, the cervical spine disability is not shown to be manifested by unfavorable ankylosis. See October 2010 and January 2012 VA examination reports. The evidence does not support a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). There was no additional functional impairment on the October 2010 VA examination and there was no evidence of muscle weakness demonstrated in the December 2011 VA treatment record. Although there was no additional decrease in the range of motion with repetition on the January 2012 VA examination, there was some additional functional loss or impairment. However, it was not to such a degree that it would equate unfavorable ankylosis. In this regard, it did not interfere with sitting, standing, and/or weight-bearing; did not cause deformity, instability, or disturbance of locomotion; and did not impair her ability to execute skilled movements smoothly. An alternate rating based on incapacitating episodes of intervertebral disc syndrome is also not assignable as this would required the cervical spine disability to have resulted in incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 month period. Although the Veteran reported during both VA examinations that she missed many days of work and even on the most recent examination indicated that she missed up to 5 weeks of work, the evidence does not show that the missed workdays were due to incapacitating episodes with prescribed bed rest. Indeed, the January 2012 VA examiner found no such evidence and indicated that her physician only recommended she avoid heavy lifting and strenuous exercise. Based on the record, the preponderance of the evidence is against higher ratings, to include any other further staged ratings, at any time during the appeal for the cervical spine disability. Therefore, it follows that there is no equipoise of the positive evidence with the negative evidence to permit a more favorable determination pursuant to 38 U.S.C.A. § 5107(b). B. Neurological Impairment The left upper extremity neurologic deficit is rated under Code 8516. With regard to the minor extremity under this Code, mild incomplete paralysis of the ulnar nerve is assigned a 10 percent rating. Moderate incomplete paralysis of the major ulnar nerve is assigned a 20 percent rating. Severe incomplete paralysis of the major ulnar nerve is assigned a 30 percent rating. Complete paralysis of the major ulnar nerve is assigned a 50 percent rating. Complete paralysis is characterized by "griffin claw" deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb; and weakened flexion of the wrist. 38 C.F.R. § 4.124a. The words "moderate" and "severe" are not defined in the Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The rating schedule provides further guidance for rating neurologic disabilities. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. From December 7, 2005 to January 6, 2012, a 10 percent rating was in effect for mild symptoms. The Veteran's complaints are sensory in nature and involve complaints of tingling, numbness, and decreased sensation in her hand and fingers. Decreased sensation is the only symptom that was objectively noted throughout this period. See the December 2005 VA examination and a January 2010 treatment record. At other times, sensation in the left upper extremity was normal. See the November 2007 VA examination and treatment records dated in November 2007, June 2010, and July 2010. Furthermore, throughout this period reflexes and motor function was reported as normal. See the December 2005, November 2007, and August 2008 VA examinations and treatment records in November 2007, January 2010, June 2010, and July 2010. Range of motion in the upper extremity was also normal. See treatment records in February 2010 and July 2010. Furthermore, a March 2010 EMG was normal. The neuropathy had minimal impact on her functioning and the fact that the symptoms were primarily in her left hand and fingers and were not shown to be frequent or constant, the disability is found to be no greater than mild. Beginning January 6, 2012, a 20 percent rating was assigned for moderate incomplete paralysis. Although the January 2012 VA examination noted atrophy in the left upper extremity, which was not previously reported, and there continued to be decreased sensation as well as complaints of severe pain, moderate paresthesias and/or dysesthesias, and moderate numbness, severe paralysis was not demonstrated. She reported that she was unable to lift her left arm due to weakness, but on examination her left upper extremity muscle strength was normal. Moreover, given that a neurosurgeon that same month opined that many of the Veteran's symptoms were not attributable to her cervical spine and that the etiology of the left upper extremity weakness and numbness was unclear, the preponderance of the evidence weighs against a finding that the criteria for a higher rating are met or approximated. Accordingly, a higher rating for left upper extremity neurologic deficit is denied and the Board finds no basis for assigning any additional staged ratings. While Note 1 following the General Formula states that a separate rating may be assigned for any objective neurological impairment that includes bowel and bladder dysfunction and the Veteran testified to having bowel and bladder dysfunction in April 2010, there is no objective evidence to support a separate rating. Furthermore, the Veteran denied throughout the appeal having any bladder or bowel dysfunction. See treatment records dated May 2010 and June 2010, and VA examinations in December 2005 and January 2012. Thus, what was reported in her treatment records is afforded more probative value, and she is ultimately not found to have associated bowel or bladder dysfunction. EXTRASCHEDULAR The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the cervical spine disability with left upper extremity neurologic deficit are contemplated by the schedular criteria discussed above. There is limitation of neck motion, flare-ups, and pain, with additional disability of pain and sensory manifestations in the left upper extremity. These symptoms are contemplated in the rating criteria. The level of disability is also contemplated as the overall disability is productive of mild to moderate disability as it presents some difficulty in her home life and occupation, which is expected and reflected in the disability ratings. Furthermore; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disabilities would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER From December 14, 2004 to August 2, 2005; and from November 1, 2005 to October 18, 2010 a rating in excess of 20 percent for a cervical spine disability is denied. Beginning October 18, 2010, a rating in excess of 30 percent for a cervical spine disability is denied. From December 7, 2005 to January 6, 2012, a rating in excess of 10 percent for left upper extremity neurologic deficit is denied. Beginning January 6, 2012, a rating in excess of 20 percent for left upper extremity deficit is denied. REMAND During the course of the appeal, additional disability ratings were assigned for associated neurological impairment in the bilateral upper extremities. Although not listed as an issue in the prior remand, the Board did direct development and adjudication with regard to right upper extremity impairment. In particular, the AMC was instructed to readjudicate whether a separate rating for neurological disability of the right upper extremity is warranted. Although the remand misstated the issue as whether a separate rating is warranted instead of whether a higher separate rating is warranted, there was no adjudication of this issue in the September 2012 rating decision or the supplemental statement of the case (SSOC). The rating of the right upper extremity neuralgia is part and parcel of the overall claim for a higher rating for the cervical spine disability and failure to adjudicate this aspect of the claim, as directed by the Board must result in another remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records since August 2012 referable to the Veteran's right upper extremity neuralgia and associate them with the record. 2. Readjudicate whether a separate rating in excess of 10 percent for right upper extremity neuralgia is warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 3. If the benefit sought is denied, provide the Veteran and her representative an SSOC and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs