Citation Nr: 1308937 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 05-04 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for orthopedic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, evaluated as 20 percent prior to October 27, 2010, and 30 percent from October 27, 2010. 2. Entitlement to a separate rating for neurologic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Y.O.L. ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2005, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Previously, the Board remanded these matters in March 2007, September 2010, and April 2012 to obtain a VA examination and opinion. After providing the Veteran with a VA examination, the RO continued the denial of the claim as reflected in the December 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. As will be discussed below, the Board finds that there has been substantial compliance with the prior remand directives. The Board notes that its discussion of the appropriate disability rating for the Veteran's service-connected cervical spine disability will not include the period from July 1, 2004 through August 31, 2004 because a temporary total convalescence rating was in effect for that period pursuant to 38 C.F.R. § 4.30. The issue of entitlement to a separate rating for neurologic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 27, 2010, the Veteran's status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7 was manifested orthopedically by complaints of pain, mild muscle spasms, tenderness to palpation, weakness in the left arm and limitation of motion, at most, to 20 degrees of forward flexion, 40 degrees of extension, 20 degrees of bilateral lateral flexion, 65 degrees of lateral rotation to the right, and 50 degrees of lateral rotation to the left. No favorable or unfavorable ankylosis of the cervical spine was shown. 2. From October 27, 2010, the Veteran's status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7 is manifested orthopedically by complaints of pain, tenderness to palpation, fatigue, decreased speed of motion, and limitation of motion, at most, to 10 degrees of forward flexion, 10 degrees of extension, 5 degrees of bilateral lateral flexion, and 10 degrees of lateral rotation to the right and left. Unfavorable ankylosis of the entire cervical spine has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for orthopedic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, for the periods prior to July 1, 2004 and from September 1, 2004 though October 26, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a rating in excess of 30 percent for orthopedic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, from October 27, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The RO's April 2004 and March 2007 letters notified the Veteran of what type of evidence was required to support his claim for an increased evaluation of his service-connected disability. In Pelegrini v. Principi, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because complete VCAA notice in this case was not provided prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Moreover, the November 2004 statement of the case (SOC) and the November 2009 and December 2012 supplement statements of the case (SSOC) under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating cervical spine disorders (38 C.F.R. §§ 4.97, General Formula for Rating Diseases and Injuries of the Spine). The Veteran was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). Concerning this, the RO provided the Veteran appropriate VA examinations in May 2004, October 2009, October 2010 and June 2012. The Board remanded the case in September 2010 and April 2012 because the VA examinations then of record contained conflicting evidence regarding the existence of cervical radiculopathy and the Board was unable to accurately determine whether a separate rating was warranted for neurological impairment associated with the cervical spine disability. Pursuant to the Board's prior remands in March 2007, September 2010 and April 2012, a new VA examination was obtained in June 2012 with an addendum in December 2012. 38 C.F.R. § 3.159(c) (4). The June 2012 VA examination report, along with the December 2012 addendum, provides adequate explanation for the conflicting diagnoses concerning cervical radiculopathy. Furthermore, the June 2012 VA examination was predicated on a review of the claims file, to include medical records, an interview with the Veteran regarding his symptoms and complaints, and a clinical examination. As it provides sufficient detail to determine the current severity of the orthopedic manifestations of the Veteran's service-connected cervical spine disability, the Board finds that the VA examination obtained was adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Under these circumstances, the Board finds that there has been substantial compliance with its April 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (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 closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Service connection for cervical spine condition as secondary to service-connected disability of L5-S1 diskectomy with traumatic arthritis was granted in a December 2002 rating decision and a 20 percent initial evaluation was assigned under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5290, effective July 24, 2001. The Veteran's present claim for a rating in excess of 20 percent for service-connected cervical spine condition was received on April 2, 2004, and was denied in the July 2004 rating decision on appeal. The Veteran also filed a a claim for a temporary 100 percent evaluation based on a July 1, 2004 surgical treatment necessitating convalescence. The RO granted a temporary total convalescence rating for status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7 (previously, cervical spine condition) pursuant to 38 C.F.R. § 4.30, effective July 1, 2004; a 20 percent rating was assigned from September 1, 2004. Subsequently, in a February 2012 rating decision, the RO granted an increased rating of 30 percent for status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5242, from October 27, 2010. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran's service-connected status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under this diagnostic code, degenerative arthritis of the spine is rated under the General Rating Formula for Diseases and Injuries of the Spine, as set forth below. Intervertebral disc syndrome (IVDS) is evaluated under Diagnostic Code 5243 either on the basis of incapacitating episodes, or under that General Rating Formula. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for 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 spine contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for 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 for 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. For VA compensation purposes, normal forward flexion of the cervical spine is from 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion is from 0 to 45 degrees, and left and right lateral rotation is from 0 to 80 degrees. Normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, Plate V. Prior to October 27, 2010 An August 2003 magnetic resonance imaging (MRI) of the Veteran's cervical spine revealed normal height and alignment of the cervical vertebrae. There was mild disc space narrowing at C6-7 and mild narrowing of the neural foramina, bilaterally, at C3-4, C4-5, C5-6 and C6-7. There was no evidence of disc herniation but there was mild diffuse disc bulge at C5-6 and C6-7, centrally. A September 2003 VA treatment report stated that the Veteran developed an acute cervical pain radiating down the left upper extremity to the left hand. The report noted that an MRI obtained by the Veteran's private physician demonstrated significant tightening of the intervertebral canal of the many cervical roots, especially compressing the C6 root on the left side. A May 2004 private MRI of the cervical spine showed disc bulge and spondylosis deformans with marginal osteophyte formation at C5-6 and C6-7; the changes were left paracentral at C5-6 and mainly involved the neural foramen on the left at C6-7. The Veteran attended a VA examination in May 2004. The Veteran complained of neck pain for which he taking medication occasionally but did not have injections, physical therapy or use assistive devices. He stated that although he had pain at work he had not been in bed or taken sick leave due to this condition. On physical examination, the range of motion included forward flexion to 40 degrees without pain, but 45 degrees with pain; extension to 40 degrees without pain and 50 degrees with painful response. Lateral flexion was 30 degrees, bilaterally, and lateral rotation was 65 degrees to the right and 70 degrees to the left. Mild spasm and tenderness to palpation were shown in the left paraspinous trapezius and elevator scapulae. The assessment was mild spondylosis of the cervical spine with subjective complaints of pain. The examiner noted that the range of motion was only 10 percent additionally increased by painful response and did not appear to be a major limitation on overall functioning. X-ray impression was mild degenerative joint disease, involving much of the cervical spine, most pronounced at the C5-6 and C6-7 levels; no abnormalities were shown at the cervical spine. In a June 2004 private treatment report, the cervical range of motion revealed decreased movement on the left rotation. There was significant spasm of the trapezius, primarily on the left. The Veteran underwent cervical discectomies at C5-6 and C6-7 with bone grafts and plate and screw fixation in July 2004. On an August 2004 imaging of the cervical spine, normal alignment was shown. No abnormal mobility or subluxation of the lower cervical spine was shown. VA neurology notes covering the period of May 2005 to April 2009 reflect that the Veteran reported ongoing pain in the neck radiating into the left shoulder and arm. It was noted that his symptoms waxed and waned but had not worsened overall. On physical examination, he had decreased range of motion of his neck, particularly to the left and in extension. The impression was cervical spondylosis and disc disease, which was reasonably well-controlled with medications. An April 2007 x-ray of the cervical spine revealed anterior fusion at C5-7; there were hypertrophic changes in the neutral foramina with minor encroachment at C6-7, bilaterally. VA pain clinic notes dated from August to November 2007 show that the Veteran received steroid injections for management of pain in the neck. The Veteran was afforded a VA examination in October 2009. The VA examiner indicated that the Veteran's claims file was reviewed. The Veteran reported neck pain on a daily basis which radiated to his left arm and hand. In the past 12 months, he had not suffered incapacitating episodes of neck pain. He further reported experiencing flare-ups triggered by activities, which lasted from two to three days and were characterized by increased pain and weakness in the left arm. He did not use any assistive device. On physical examination, motion of the Veteran's neck appeared pain-free. Range of motion included 20 degrees of flexion, 45 degrees of extension, 70 degrees of rotation to the right and 50 degrees of rotation to the left, and 20 degrees of lateral flexion, bilaterally. The examiner stated that the range of motion was not additionally limited following repetitive use on examination. The Veteran's neck was diffusely tender. The examiner noted that a May 2007 MRI of the cervical spine showed anterior surgical fusion at the C5 level through C7, along with bilateral foraminal narrowing from C3 through C7. The diagnosis was cervical degenerative disc disease with imaging evidence of bilateral cervical radiculopathy. A July 2010 VA MRI of the cervical spine revealed mild degenerative stenosis involving the intervertebral nerve root canals, bilaterally, at the C3-4 through C6-7 levels; no other abnormalities were shown at the cervical spine and the signal intensity throughout the cervical spinal cord was normal. After consideration of the pertinent evidence of record, the Board finds that the clinical evidence of record is against a finding that orthopedic manifestations of the Veteran's cervical spine disability warrant a rating in excess of 20 percent for the time period prior to October 27, 2010. The Veteran's cervical spine disability was manifested by complaints of pain, mild muscle spasms, tenderness to palpation, weakness in the left arm and limitation of motion, at most, to 20 degrees of forward flexion, 40 degrees of extension, 20 degrees of bilateral lateral flexion, 65 degrees of lateral rotation to the right, and 50 degrees of lateral rotation to the left. However, a rating greater than 20 percent is not warranted during this time period as there is no evidence of 15 degrees or less of forward flexion or favorable ankylosis of the cervical spine. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citations omitted) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). Rather, the evidence clearly demonstrates that the Veteran continued to retain motion in his neck with at least 20 degrees of forward flexion. As there was clearly motion, the medical evidence of record simply does not show ankylosis of the cervical spine, required for the assignment of the next higher evaluation. See 38 C.F.R. § 4.71a, General Rating Formula. Additionally, the medical evidence of record does not show that the Veteran's cervical spine disability increased in severity in terms of limitation of motion due to pain. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 206 (1995). Although the Veteran had pain during range of motion, the Board considered the smaller value of the range of motion measured without pain on the May 2004 VA examination. Further, the May 2004 VA examiner noted that the range of motion was additionally increased by painful response only by 10 percent and did not appear to a major limitation on overall functioning. On the October 2009 VA examination, the VA examiner specifically stated that the range of motion was not additionally limited following repetitive use on examination. In addition, the Veteran does not use assistive devices, and has been able to maintain employment. Accordingly, the Board finds that additional limitation of motion due to pain or weakness beyond that contemplated by the assigned rating for the Veteran's cervical spine disability has not been shown. Accordingly, a rating greater than 20 percent is not warranted on this basis. From October 27, 2010 The Veteran was provided a VA examination in October 2010. The VA examiner indicated that the Veteran's claims file was reviewed. The Veteran reported difficulty getting comfortable with positioning of his neck. He had decreased neck movement. He could feel the hardware from the fusion moving when he moved his neck in certain positions. He reported that his neck pain was constant and occurred on a daily basis. He had constant radiation of the pain into the left arm and a generalized loss of strength to that arm. His neck pain did not affect his ability to walk. He had not had any incapacitating episodes. He was currently employed as a postmaster. He stated that his job had to be altered because he used to ride around the do route checks; however, he could no longer do that because of the limited range of motion due to neck pain. He also stated that he could not do sports or chores because he could not hold things because of his arm and his grip strength in the hand. On physical examination, the range of the motion of the neck included 10 degrees of extension, 10 degrees of flexion, 5 degrees of flexion to either direction, and 10 degrees of rotation, which remained unchanged with repetition. He was slow to perform the motions and reported pain at the end of range of motion. He did not have any spasms, but had tenderness in his neck. His gait was normal. The assessment and diagnoses were mild degenerative stenosis of the cervical spine; post-operative changes consistent with fusion of C5-C6 and C6-C7. Most recently, the Veteran underwent a VA examination in June 2012. The VA examiner indicated that the Veteran's claims file was reviewed. The diagnosis was cervical spondylosis and degenerative disc disease status post anterior cervical discectomy and fusion. The Veteran reported neck pain with flare-ups upon over-exertion. Range of motion of the cervical spine included 30 degrees of forward flexion; 20 degrees of extension; 30 degrees of lateral flexion, bilaterally; and 30 degrees of lateral rotation, bilaterally. The examiner noted that the Veteran was able to perform repetitive use testing with three repetitions, after which range of motion remained unchanged. It was noted that the Veteran did not have additional limitation in range of motion of the cervical spine but had functional loss due to less movement than normal and pain on movement. The Veteran had localized tenderness to palpation for joints/soft tissue of the cervical spine but did not have guarding or muscle spasms. All muscle groups in the bilateral upper extremities showed full strength and no muscle atrophy was shown. The examiner further noted that the Veteran had intervertebral disc syndrome (IVDS) of the cervical spine but did not have any incapacitating episode over the past 12 months due to the IVDS. The Veteran had no vertebral fracture. The examiner found that the Veteran's cervical spine condition impacted his ability to work because the Veteran was currently employed as postmaster but street observation and inventory were limited secondary to his limited range of motion and "fatigue." From October 27, 2010, the Board concludes that a rating in excess of 30 percent is not warranted as there is no evidence of unfavorable ankylosis of the entire cervical spine. Rather, the evidence clearly demonstrates that the Veteran has continued to retain motion in his neck, albeit severely limited. Findings obtained through the recent VA examinations included, at least, forward flexion of the cervical spine to 10 degrees, extension to 10 degrees, and lateral flexion and rotation in each direction to 5 and 10 degrees, respectively. As there was clearly motion, the medical evidence of record simply does not show unfavorable ankylosis of the entire cervical spine, required for the assignment of the next higher evaluation. See 38 C.F.R. § 4.71a, General Rating Formula. Additionally, the Board has considered whether there is any additional functional loss not contemplated in the current 30 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also DeLuca, 8 Vet. App. at 206. The objective evidence reflects less movement than normal and pain on movement. However, on the October 2010 and June 2012 VA examinations, the repetitive range of motion testing did not reveal any additional limitation of motion. The level of limitation of motion due to pain is already contemplated in the current 30 percent evaluation. In other words, any additional functional loss due to pain does not more nearly approximately a finding of unfavorable ankylosis of the entire cervical spine. Accordingly, a rating greater than 30 percent on this basis is not warranted. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. The Board has considered whether the Veteran's range of motion is so limited by the factors noted in DeLuca so as to constitute unfavorable ankylosis, but finds that it does not. Although on the October 2010 VA examination, the Veteran stated that his job had to be altered due to the limited range of motion due to neck pain and that he could not do sports or chores because he could not hold things because of his arm and his grip strength in the hand, his neck pain did not affect his ability to walk and his gait was normal; he had not had any incapacitating episodes and maintained steady employment as a postmaster. On the June 2012 VA examination, the Veteran has shown adequate muscle strength and lack of atrophy upon examination; thus indicating that he does move his neck to a significant degree on a consistent basis. If the Veteran failed to move his neck on a consistent basis, it would be reasonable for such a lack of motion to have resulted in inadequate muscle tone and atrophy. Other Considerations Consideration has been given to an increased rating for the Veteran's service-connected cervical spine disability under other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). Although the record reflects that the Veteran's service-connected cervical spine disability is manifested by intervertebral disc syndrome, it did not result in incapacitating episodes requiring bed rest prescribed by a physician and treatment prescribed by a physician, at any time during the period on appeal. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5247. These issues have been reviewed with consideration of whether additional staged ratings would be warranted. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected cervical spine disability, there is no evidence of record that would warrant a rating in excess of those assigned for the Veteran's service-connected disability during any of the periods on appeal. See Hart, 21 Vet. App. at 508. Additionally, the Board finds that a separate rating is not warranted for cervical spine surgical scar. In this regard, the October 2010 VA examination report noted that the Veteran had a well-healed anterior incision that was horizontal, and 3 cm x 0.25 cm over the anterior aspect of his neck, that was nontender to palpation, not ulcerated, not unstable and superficial in nature. The June 2012 VA examiner found that the scar was neither painful nor unstable, and the total area of the scar was not greater than 39 square cm. In sum, the scar was not painful on examination, shown to be superficial, and/or of the severity or of size so as to warrant additional compensation under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2012). As such, a separate compensable rating for a cervical spine surgical scar is not warranted. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran'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 Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected disability is inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology as due to his disability because they contemplate the Veteran's decreased mobility and any additional limitation of motion due to pain due to his cervical spine disability. Furthermore, he has not required hospitalization during the appeal period. Indeed, the record reflects that the Veteran has been employed as a postmaster excluding the period from July 1, 2004 to August 31, 2004 during which he underwent a cervical spine surgery; a temporary total rating for such period based on a lumbar spine surgery was granted. The record reflects that the Veteran has not had incapacitating episodes due to his cervical spine disability. Therefore, marked interference of employment due to the cervical spine disability has not been shown. As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. In sum, the Board finds that the evidence is against the assignment of ratings in excess of those currently assigned for the Veteran's service-connected cervical spine disability, at any time during the rating period on appeal. While the Veteran is competent to report the symptoms he experiences, and the Board finds him credible in this regard, the reported symptoms are consistent with the assigned schedular evaluation. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER A rating greater than 20 percent for orthopedic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, prior to July 1, 2004 and from September 1, 2004 through October 26, 2010, is denied. A rating greater than 30 percent for orthopedic manifestations of status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, from October 27, 2010, is denied. REMAND In this case, the Board remanded the case in September 2010 and April 2012 because the record included conflicting medical evidence as to whether the Veteran had cervical radiculopathy associated with his service-connected cervical spine degenerative disk disease, and the Board was unable to accurately determine whether a separate rating was warranted for neurological impairment associated with the cervical spine disability. To that effect, a separate rating may be assigned for any neurologic abnormalities associated with the cervical spine disability. 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2012). Pursuant to the Board's prior remands in March 2007, September 2010 and April 2012, a new VA examination was obtained in June 2012, with an addendum in December 2012. 38 C.F.R. § 3.159(c) (4). The June 2012 VA examination report, along with the December 2012 addendum, provides adequate explanation for the conflicting diagnoses concerning cervical radiculopathy. Specifically, the June 2012 VA examiner noted that although the Veteran certainly reported subjective symptoms of left upper extremity radiculopathy dating back prior to his surgery in 2004, the electromyography (EMG)/nerve conduction study (NCS) in February 2004 and December 2010 have both been interpreted as normal. Although the Veteran reported numbness to pinprick and light touch on the dorsum of the left hand on examination it did not follow a typical dermatomal distribution and no focal weakness was elicited from the examination. The examiner explained that cervical radiculopathy is a clinical diagnosis with contribution from imaging findings but cannot not be diagnosed solely on imaging findings as was described in the October 2009 VA examination. The June 2012 VA examiner conclusion that despite the subjective concern for radiculopathy, the objective data did not support a firm diagnosis of left upper extremity radiculopathy, was echoed in the December 2012 addendum. However, the December 2012 VA examiner suggested that given that the Veteran had not undergone EMG/NCS in over two years, it may be reasonable to have studies re-conducted based on his report of continued symptoms. The Board also notes that on the October 2010 VA examination, the Veteran reported difficulty swallowing and a hoarse voice which he thought were related to the scar from the surgery. The examiner noted that hoarseness and difficulty swallowing was "likely due to issues with the recurrent laryngeal nerve which could be retracted upon and cause issue with the surgery that was performed." However, this statement does not indicate clearly whether the Veteran's reported symptoms of difficulty swallowing and a hoarse voice is related to his cervical spine surgery. Based on the foregoing, the Board finds that the Veteran must be afforded another VA neurologic examination, including EMG/NCS, to determine the existence and severity of any neurologic manifestations of the Veteran's service-connected status post cervical discectomy and fusion with traumatic arthritis and degenerative disk disease with spondylosis, C5-6 and C6-7, to include hoarseness and difficulty swallowing. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA neurologic examination to determine the existence and severity of any neurologic manifestation of the Veteran's service-connected cervical spine disability. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough neurologic examination of the Veteran's cervical spine including EMG and NCS. All pertinent symptomatology and findings must be reported in detail. The examiner must identify any neurologic manifestations associated with the Veteran's service-connected cervical spine disability and describe any symptoms and functional limitations associated with such impairment(s). The examiner must also specifically state whether any neurologic manifestation found results in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. The examiner must also comment on whether the Veteran's reported symptoms of difficulty swallowing and a hoarse voice are neurological manifestations associated with the cervical spine disability. A complete rationale for all opinions must be provided. 2. Upon completion of the foregoing, readjudicate the Veteran's claim based on a review of the entire evidentiary record. If the benefit sought remains denied, issue a supplemental statement of the case and afford the Veteran and his representative with an appropriate opportunity to respond. Thereafter, case should then be returned to the Board for appellate review, as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs