Citation Nr: 1311002 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-01 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating greater than 10 percent for cervical spine degenerative disc disease with herniated disc at C5/6 and stenosis for the time period from July 6, 2005 to June 27, 2009. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1979 to July 1999. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a August 2008 and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Procedural history VA received the Veteran's original service-connection claim for a cervical spine disability in July 2005. The RO denied this claim in an August 2005 decision, which the Veteran duly appealed to the Board. The Board granted the Veteran's service-connection claim in August 2008. In the above-referenced August 2008 rating decision, the RO implemented the Board's decision, and assigned the Veteran an initial rating of 10 percent for his cervical spine disability, effective the date of his service-connection claim, July 6, 2005. The Veteran disagreed with this assigned initial rating, and perfected an appeal as to that issue. During the pendency of the appeal, in the above-referenced July 2009 rating decision, the RO increased the Veteran's initial cervical spine disability rating from 10 to 30 percent, effective June 27, 2009. The Veteran contacted VA and expressed satisfaction with this 30 percent rating. See Statement by the Veteran, dated in July 2009. As such, the question of whether a rating in excess of 30 percent is currently warranted is not in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993) [a claimant can choose to limit the appeal to a claim for less than the maximum rating]; see also Hamilton v. Brown, 4 Vet. App. 528, 544 (1993). Significantly however, the Veteran did make it clear that he disagreed with the assigned effective date of June 27, 2009 for this increased initial rating to 30 percent, and he perfected an appeal as to that issue as well. In the analysis below, the Board will consider whether any rating higher than 10 percent may be assigned from the effective date of service connection, July 6, 2005 to the date the RO made the increased initial rating of 30 percent effective, June 27, 2009. This analysis will take into consideration whether the Veteran's current 30 percent disability rating may be made effective prior to June 27, 2009. The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Muskogee RO in November 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. FINDING OF FACT During the time period from July 6, 2005 through June 26, 2009, the Veteran's service-connected cervical spine disability manifested in pain and limitation of motion to 40 degrees in forward flexion, and the evidence does not show that the Veteran's disability was so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for the Veteran's cervical spine disability during the time period from July 6, 2005 through June 26, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The 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, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). With respect to the Veteran's cervical spine claim, the Board notes that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8- 2003 (December 22, 2003). As such, because service connection for the Veteran's cervical spine disability has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluation for this disability are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (noting that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA and private treatment records, and his own lay statements and testimony have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the Veteran's cervical spine claim. In fact, the Veteran confirmed that all treatment records relevant to the time period under review are already associated with his claims folder. See November 2010 Hearing Transcript [Tr.] at 9. With respect to the VA examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claim. The Veteran appeared for a VA spine examination in April 2006, and a QTC fee-based spine examination in June 2009. The respective examination reports reflect that each examiner was aware of the Veteran's pertinent medical history, recorded the Veteran's complaints, conducted appropriate examinations, and rendered appropriate diagnoses consistent with the other evidence of record. The Veteran has not challenged the adequacy of the June 2009 QTC examination report. The Veteran has however asserted the Veteran's April 2006 VA examination was inadequate for adjudicatory purposes for a number of reasons. First, the Veteran asserted in a May 2006 statement that the April 2006 VA examiner, a nurse practitioner, briefly looked at his back, and asked questions about what was already in his records. He asserted that he was not given the opportunity to provide more information about his disability, and that he finds it "difficult to see how [the nurse practitioner] could arrive at any concrete conclusion from that interview." See May 29, 2006 Statement, attached to the Veteran's May 2006 VA Form 9. Contrary to the Veteran's assertions, upon review of the April 2006 VA examiner's report, the Board observes that not only was the Veteran afforded an opportunity to provide additional information about his cervical spine disability to VA, he took full advantage of this opportunity by reporting in detail the history of his disability and its progression over time, his current symptoms, his current medications, the effect of those medications on pain management, the severity and frequency of flare ups, and the effect he believed his disability had on his daily living at the time. The report contained objective musculoskeletal and neurovascular findings, and the VA examiner reported her own general observations as to the Veteran's distress level and his physical abilities during the examination. Nothing in the examination report suggests that the Veteran was unable to express any concern or observation he had regarding his disability to the VA examiner, and he is not shown to have the medical expertise or training to speculate as to how an individual with medical training, such as the VA examiner, can generate medical findings based on a one-time interview and examination. The Board adds that the very fact that the April 2006 VA examiner was indeed a nurse practitioner, and not a physician, does not in and of itself render her observations and findings inadequate. See Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding VA medical examiners are presumed competent in the absence of clear evidence to the contrary). Notably, in Cox v. Nicholson, 20 Vet. App. 563 (2007), the Court held that it has never required that medical examinations under section 5103A only be conducted by physicians. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." In Cox, a nurse practitioner was found to fit squarely into the requirement of section 3.159(a)(1) as a provider competent to provide diagnoses, statements, or opinions. 20 Vet. App. at 569. Second, it appears that the Veteran also asserted that the Board should disregard, or assign little probative value to the objective findings of the April 2006 VA examiner because the Board has already determined in a prior decision that the April 2006 examiner's negative nexus opinion [against a finding that the Veteran's current spine disability was related to his service] carries little weight when compared to the other evidence of record. The Board rejects this argument, as the Veteran's medical history as reported to the April 2006 VA examiner, and the objective medical findings recorded by the VA examiner [to include range of motion assessments] are no less valid simply because the examiner came to a conclusion that was incomplete, not adequately explained, or contrary to other etiological conclusions of record. Indeed, in its August 2008 decision, the Board found the April 2006 VA examiner's conclusions to be outweighed by the other medical evidence of record, with no judgment as to the probative value of the information and data gathered by the VA examiner at the time. As such, the Board wishes to make clear that by relying on the April 2006 VA examiner's objective clinical findings as well as the Veteran's own history as reported to the April 2006 VA examiner in determining the Veteran's disability rating herein, it is in no way "using an examination that was not substantiated on appeal" to support its legal conclusions, as the Veteran so asserts. See May 29, 2009 Statement, attached to the Veteran's May 2009 VA Form 9; see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report "must be read as a whole"). Finally, at the November 2010 hearing, the Veteran's representative asserted that the April 2006 VA examination was inadequate because the examiner could not report the extent to which the Veteran's range of motion decreased due to pain during a period of flare up without resort to speculation. See November 2010 Hearing Tr. at 10; see also April 2006 VA examiner's report at 3. While it is true that the April 2006 VA examiner did not discuss the actual degree to which range of motion of the Veteran's cervical spine may have been affected during a period of flare up, the examiner did describe in detail the overall severity and frequency of the Veteran's disability during such a flare up. Indeed, on page one of her report, the examiner noted that the Veteran experienced flare ups daily, lasting minutes or up to an hour, characterized by an increase in pain from 6/10 in severity to 8/10. She also highlighted the fact that the Veteran himself stated that he can alleviate the pain with medication, and that he is only "mildly impaired during the flare up." See April 2006 VA examiner's report at 1-2. The Court held in Ardison v. Brown, 6 Vet. App. 405 (1994) that VA is obligated to evaluate a disability while in an active condition in order to fulfill the duty to assist. However, the Board finds that the Veteran's case is distinguishable and that the Court's more recent holding in Voerth v. West, 13 Vet. App. 117 (1999) is more applicable. In Voerth, the Court explained that a new examination was warranted in Ardison because the worsening condition of the disability at issue in that case impaired that veteran's earning capacity, noting that occupational impairment is the primary component of the disability rating under 38 C.F.R. § 4.1. No examination during a time of inflammation was required in Voerth because the veteran in that case testified that his disability did not impact his employment. See Voerth, 13 Vet. App. at 122-23. In this case, the Veteran has similarly testified that although his cervical spine disability causes him pain while at work, and requires him stand up at times during the day to exercise his back, his disability has not caused him to miss any days of work because he works on a computer, and does not do anything strenuous. See November 2010 Hearing Tr. at 11. Further, the Court in Voerth noted that a new examination was warranted in Ardison because the disability under consideration in that case would, when active, manifest for several weeks or months at a time. The Court noted that imposing such an examination standard in regard to disabilities with shorter flare ups was impractical and further acknowledged that persons experiencing such shorter flare ups were "simply [] less impaired than someone who suffers from the worsened condition for weeks or months." Voerth, 13 Vet.App. at 123. The Board recognizes that the Veteran in this case has stated his flare ups occur daily [as opposed to only a few days of the year, as in Voerth]. Crucially however, the Veteran has specified that the flare ups can last as short as only a few minutes, are controllable with medication, and only cause mild impairment. See April 2006 VA examiner's report at 2. As such, the Board finds that, as in Voerth, attempting to schedule the Veteran in this case for a cervical spine examination during a flare up was impractical, and the April 2006 VA examiner's failure to examine the Veteran's cervical spine during a flare up, and, in turn, his inability to list the specific degree to which the Veteran's cervical spine range of motion was impaired during a flare up, does not render the entire examination inadequate for rating purposes. Moreover, the Board is aware of the Court's holding in Chotta v. Peake, 22 Vet. App. 80 (2008), directing that when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted. In this case, with respect to the Veteran's cervical spine disability flare ups, because the April 2006 VA examiner's report included detailed descriptions of the frequency and severity of the Veteran's self-described flare ups, coupled with observations of the Veteran's ranges of motion with and without pain and upon repetitive use testing, the Board does not believe an absence of evidence exists that would necessitate solicitation of a retroactive medical opinion by another VA examiner. Thus, a remand is not necessary to supplement the record in this case. Based on all of the above, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The undersigned set forth the issue to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, and his questions elicited testimony specific to the current nature and severity of the Veteran's cervical spine disorder. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can adjudicate the claims based on the current record. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2012). Legal criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). The Veteran's original compensation claim was filed in July 2005, subsequent to these changes. Accordingly, only the amended criteria will be employed in the adjudication of this claim. The orthopedic manifestations of the Veteran's cervical spine disability have been rated 10 percent disabling under Diagnostic Code 5242 [degenerative arthritis of the spine] since the effective date of service connection, July 6, 2005, to the end of the period under review, June 27, 2009, at which point an undisputed 30 percent rating is assigned to the present day. All cervical spine disabilities, with the exception of intervertebral disc syndrome, are rated using the same criteria, the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Spine disabilities may be alternatively rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. A compensable rating under this Formula requires the Veteran to have experienced incapacitating episodes, with bed rest as prescribed by a physician. See Note (1) to the General Rating Formula for Diseases and Injuries of the Spine. In this case, the medical evidence does not reflect, nor does the Veteran contend, that he has ever been prescribed bed rest for his cervical spine disability during the period under review. Indeed, both the April 2006 VA examiner and the June 2009 QTC examiner specifically reported that the Veteran denied experiencing incapacitating events secondary to his disability, and the June 2009 QTC examiner also observed no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. Thus, the Veteran's service-connected cervical spine disability will be rated using the General Rating Formula for Diseases and Injuries of the Spine, and not the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula for Diseases and Injuries of the Spine designates the following: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or for a combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Note (2) of the General Rating Formula stipulates that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (2) (2012). The Board has considered rating the Veteran's cervical spine disability under Diagnostic Code 5003 [arthritis], but has determined that doing so would not avail the Veteran. Diagnostic Code 5003 specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. As noted above, all cervical spine disabilities, with the exception of intervertebral disc syndrome, are rated using the same criteria-the General Rating Formula for Diseases and Injuries of the Spine-which include consideration of any limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2011). Crucially, the General Rating Formula does not include consideration of any neurological components of the Veteran's service-connected disability or disabilities. Rather, Note (1) of the General Rating Formula directs that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code. In this connection, the Board will consider whether such additional evaluations are indeed warranted in its analysis below. Finally, the Board adds that when evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the relevant rating criteria. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). Schedular rating In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with [as in this case], it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, the Veteran's cervical spine disability has been rated 10 percent disabling since the effective date of service connection, July 6, 2005. As discussed above, the RO has already awarded the Veteran an increased initial rating to 30 percent effective June 27, 2009. The Veteran is satisfied with this rating, but desires that the rating be made effective prior to that date. The Board will therefore consider whether any rating higher than 10 percent is warranted during the period under review or whether any separate ratings are warranted. As noted above, to warrant the assignment of a 20 percent rating under the General Rating Formula, the disability must manifest in forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or for a combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. For a 30 percent rating, the disability must manifest in favorable ankylosis of the entire cervical spine, or forward flexion of 15 degrees or less. For a 40 percent rating, unfavorable ankylosis of the entire cervical spine must be demonstrated. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Board initially notes that the medical evidence of record does not demonstrate that the Veteran's cervical spine disability is at all ankylosed. Indeed, "ankylosis" is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Although the Veteran's cervical spine disability does manifest in some limitation of motion, it is not fixed without motion at any degree or angle, with or without pain, and the Veteran does contend as much. As such, entitlement to a 100 percent or 40 percent rating is not warranted under the General Rating Formula. Additionally, a 30 percent rating also may not be assigned during the period under review based on the presence of cervical spine ankylosis. Additionally, the evidence also fails to show that the Veteran experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis during the period under review. Indeed, the Veteran's private examiner, Dr. J.D.D., noted that the Veteran had a "normal" gait upon examination just prior to the period under review in May 2005, and the April 2006 VA examiner similarly observed a normal gait with normal curvature of the spine. Significantly, the Veteran has not submitted, nor has he notified VA of any additional treatment he received for his spine at any time subsequent to the April 2006 VA examination and prior to June 27, 2009. On that date, the June 2009 QTC examiner observed evidence of cervical muscle spasm, but pertinently noted that the Veteran had normal posture and normal gait, with symmetry of spinal motion and normal curves of the spine. In light of the foregoing, a 20 percent rating is not warranted based on muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. With respect to limitation of motion, the Board notes that just prior to the period under review, in a May 2005 assessment, the Veteran's private physician indicated that the Veteran had "normal" range of motion of the cervical spine. See May 31, 2005 examination report of Dr. J.D.D. At the April 2006 VA examination, the Veteran exhibited the following cervical spine ranges of motion: Movement Normal ROM ROM in degrees Degree that pain occurs ROM after repetitive use Flexion 0 to 45 degrees 40 No pain 40 Extension 0 to 45 degrees 40 40 40 R lateral flexion 0 to 45 degrees 45 45 45 L lateral flexion 0 to 45 degrees 45 45 45 R lateral rotation 0 to 80 degrees 80 80 80 L lateral rotation 0 to 80 degrees 80 80 80 Combined 340 degrees 330 330 As shown in this chart, the April 2006 VA examiner specifically found that the Veteran experienced no change of function with repetition of movement. These range of motion calculations are the only calculations of record during the time period under review from July 2005 to June 2009. Based on observation of flexion limited to 40 degrees, a 10 percent rating and no higher is warranted under the General Rating Formula. Indeed, the Veteran has not exhibited limitation of motion of the cervical spine of 30 degrees or less, or a combined range of motion of 170 degrees or less at any time during the period under review for the assignment of a 20 or 30 percent rating. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding of DeLuca. However, an increased evaluation for the Veteran's cervical spine disability is not warranted on the basis of functional loss due to pain, weakness or fatigability in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating and no higher during the period under review. In this regard, the Board observes that the Veteran has complained of cervical spine pain with daily flare ups lasting for only a few minutes up to an hour, sometimes occurring several times a day. He reported increased pain with weight lifting and stiffness, which is already contemplated by the General Rating Formula, while driving. See April 2006 VA examiner's report at 1-2. The Board finds the Veteran's descriptions of his own cervical spine symptomatology both competent and credible. Nevertheless, as shown above, the range of motion measurements of record demonstrate that the Veteran was able to achieve 40 degrees of flexion without pain during this time period, which well exceeds the maximum range of 30 degrees and 15 degrees of flexion considered for a 20 or 30 percent rating under the General Rating Formula. Upon examination, the Veteran did not exhibit any decreased range of motion upon repetitive use testing. Further, as discussed above, although the April 2006 VA examiner stated that the Veteran's flare ups did in fact cause additional limitation of motion due to pain, the Veteran specifically indicated that he is only "mildly impaired" during a flare up, which can last as short a few minutes, and as long as an hour. The Veteran did not use a brace, and walked unaided with a normal gait. The Veteran specifically stated that although he has pain with certain movements, "he does not feel that the neck interferes with any other activities of daily living." See April 2006 VA examiner's report at 2. Thus, while it is clear that the Veteran experiences some functional loss due to his cervical spine and stiffness, such loss does more nearly approximate the criteria contemplated by the assignment of a higher disability rating [20 percent or greater] under 38 C.F.R. §§ 4.40 and 4.45 during the time period under review. The Board adds that it recognizes the Veteran's recent testimony suggesting that his disability picture did not change at any time prior to June 27, 2009, and has always been as severe as discussed and observed at the June 27, 2009 QTC examination. The Veteran is certainly competent to attest to his own observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, after comparing the objective findings of the April 2006 VA examiner with those of the June 2009 QTC examiner with respect to range of motion and overall assessments of functional loss, the Board finds the Veteran's assertions simply not credible. Indeed, the Veteran exhibited the following cervical spine ranges of motion at the June 27, 2009 QTC fee-based examination: Movement Normal ROM ROM in degrees Degree that pain occurs ROM after repetitive use Flexion 0 to 45 degrees 15 15 decreased Extension 0 to 45 degrees 32 32 decreased R lateral flexion 0 to 45 degrees 25 25 decreased L lateral flexion 0 to 45 degrees 28 28 decreased R lateral rotation 0 to 80 degrees 50 50 decreased L lateral rotation 0 to 80 degrees 45 45 decreased Combined 340 degrees 195 decreased Crucially, the Veteran's ability to forward flex his cervical spine decreased by over 50 percent, from 40 degrees without pain to 15 degrees with pain between April 2006 and June 2009. His combined range of motion also decreased from 330 degrees to 195 degrees, and it is clear that his pain thresholds have also decreased during motion. Unlike as in April 2006, in June 2009 the Veteran for the first time exhibited additional limitation of motion after repetitive use due to pain, fatigue and weakness with major functional impact. The RO awarded the Veteran a 30 percent disability rating as of the date of this examination because this was the date upon which it became clear that the Veteran's disability worsened in severity. See 38 C.F.R. § 3.400(o)(1) (specifying that the effective date for an increased rating generally will be the date of receipt of claim or the date entitlement arose, whichever is later (expect for as provided in (o)(2)). In this case, the record reflects that entitlement to a 30 percent disability rating arose well after the Veteran filed his original July 2005 claim for service connection. The Board observes that the Veteran takes specific exception to the fact that the examination that led to the award of the 30 percent rating was not performed until June 2009. The Veteran alleges that had VA provided an examination to him prior to that date, objective evidence would have shown entitlement to a 30 percent evaluation. While this may or may not be the case, the Board must point out that the Veteran was afforded an initial VA examination in April 2006 that did not demonstrate severe enough symptomatology to warrant the assignment of any rating higher than 10 percent. Neither the Veteran nor his representative submitted any medical evidence demonstrating the presence of any worsened symptoms dating from April 2006 to June 2009 that contradicts the findings or the April 2006 VA examiner. In fact, the June 2009 VA examiner specifically noted that the Veteran "is not receiving treatment for his condition." The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his increased initial rating claim for the three years following his April 2006 examination and has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. Further, as noted above, based on the very clear decrease in range of motion and increased functional loss exhibited in June 2009, the Board does not find credible the Veteran's assertions that his disability picture was the always as severe as shown at the June 2009 QTC examination, thus warranting up to a 30 percent rating during the period under review. As noted above, the General Rating Formula also provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1) (2012). During the time period under review, while it is clear that the Veteran has complained of radiating pain [radiculitis] down the right arm, there is no indication that such symptomatology was so severe as to warrant the assignment of a separate rating under the diagnostic criteria for neurological impairment. The Board recognizes that an MRI taken in April 2005 demonstrated that the Veteran had severe right foraminal stenosis, severe right lateral recess stenosis, and moderate to severe right-sided spinal canal stenosis due to a right parasagittal and foraminal protrusion. While the Board in no way doubts the severity of this stenosis, it observes that the stenosis was not productive of severe enough neurological impairment necessitating the assignment of a separate compensable rating. Indeed, the April 2005 MRI report specifically indicated that there were "no abnormal signal characteristics in the cervical spinal cord," and that although the foraminal protrusion flattens the right anterior aspect of the spinal cord, "it does not cause hyperintense signal . . . ." See April 2, 2005 MRI report. Subsequently, in May 2005, the Veteran's private physician, Dr. J.D.D., provided a neurological consultation, noting that EMG/nerve conduction velocity testing showed "no evidence of nerve damage or carpal tunnel syndrome." Motor strength was 5/5 equally and bilaterally, sensation was intact, with a slight tingling dysesthesia in the C6 distribution, deep tendon reflexes were symmetric at 2/4 and the Babinski test was negative. Dr. J.D.D. reviewed the Veteran's MRI scan, acknowledged the severe right lateral recess stenosis and foraminal stenosis, but found "no obvious impingement." Dr. J.D.D. concluded that the Veteran had experienced cervical radiculitis that was improving. See May 31, 2005 examination report of Dr. J.D.D. Upon examination in April 2006, the Veteran exhibited reflexes and radial pulses of 2+ of the bilateral upper and lower extremities. Sensation to light touch and sharp and dull were also intact to the upper extremities. As noted above, no medical evidence dated subsequent to this April 2006 VA examination report and prior to June 2009 exists of record. Significantly, the June 27, 2009 QTC examiner determined that the Veteran's upper extremity motor function and sensory function were both within normal limits, and both the right and left upper extremity reflexes revealed biceps jerk of 2+ and triceps jerk of 2+. The examiner specifically found no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. See June 2009 QTC examiner's report at 2. The Board adds that there is no medical evidence reflecting the presence of neurological symptoms such as bowel and bladder dysfunction. Thus, while the Board in no way doubts that the Veteran's spinal stenosis is severe, or that his cervical spine disability manifests in some pain and tingling in the upper back and right arm, a separate compensable rating for neurologic impairment is not warranted at any time from July 6, 2005 to June 27, 2009 because objective neurological testing and imaging fails to show neurological pathology which is consistent with a separate associated abnormality. See generally Bierman v. Brown, 6 Vet. App. 125, 131-32 (1994) (holding that under former Diagnostic Code 5293 a separate rating for a neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder). In sum, the evidence of record does not demonstrate that the overall disability picture exhibited by the Veteran's service-connected cervical spine disability warrants a disability rating higher than 10 percent at any time during the period under review (or a separate rating), from the effective date of service connection, July 6, 2005 to June 27, 2009. 38 C.F.R. §§ 4.3, 4.7. As such, the assignment of an initial rating greater than 10 percent is not warranted on a schedular basis, and staged ratings within this time period are not for application. Extraschedular consideration Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to VA regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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 initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected cervical spine disability. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the evidence demonstrates that the Veteran's cervical spine disability is manifested by pain and limitation of motion to 40 degrees in flexion during the period under review. Such symptoms are specifically contemplated by the current rating criteria. Indeed, limited motion is specifically addressed in the General Rating Formula, and the effects of pain on motion are addressed by the schedule through application of the provisions in 38 C.F.R. §§ 4.10, 4.40, and 4.45 and Deluca factors, discussed above. Hence, the rating criteria reasonably describe the Veteran's disability. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board wants to make clear that it no way doubts that the Veteran's cervical spine disability at times causes more significant pain during a flare up, which is controlled with medication. Crucially however, there is nothing in the record to indicate that the Veteran's service-connected cervical spine disability causes impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Rice considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), 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. Significantly, the record does not reflect that the Veteran's service-connected cervical spine disability renders him unable to secure or follow a substantially gainful occupation, and the Veteran has not alleged as much. Indeed, the Veteran specifically testified that he currently working. See November 2010 Hearing Tr. at 10. Accordingly, the Board concludes that a claim for total disability based on unemployability has not been raised by either the Veteran or the record. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating greater than 10 percent for the Veteran's service-connected cervical spine degenerative disc disease with herniated disc at C5/6 and stenosis, during the time period from July 6, 2005 to June 27, 2009, is denied. ____________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs