Citation Nr: 1313370 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 04-10 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for cervical degenerative arthritis. 2. Entitlement to an initial evaluation in excess of 20 percent for frozen left shoulder, secondary to cervical degenerative arthritis. 3. Entitlement to an initial evaluation in excess of 20 percent for frozen right shoulder, secondary to cervical degenerative arthritis. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO's March 2004 rating decision granted service connection for cervical spine spondylosis, assigning a 10 percent disability rating, effective October 4, 1991, followed by a 20 percent disability rating, effective November 1, 2003. It also granted service connection for right and left frozen shoulders, secondary to cervical degenerative arthritis, assigning separate 20 percent disability ratings, effective November 1, 2003; and granted service connection for quadriparesis of the right upper extremity, including the right arm and hand, assigning a 10 percent disability rating, effective November 1, 2003. The Veteran timely appealed this decision seeking both increased initial evaluations and earlier effective dates for each of these disabilities. In April 2005, the RO issued a rating decision which granted a temporary total disability evaluation of 100 percent, from April 16, 1992 to August 31, 1992, based on surgical or other treatment necessitating convalescence. It also granted an increased disability rating of 20 percent, effective from September 1, 1992, for the Veteran's cervical spine spondylosis; and granted an earlier effective date of October 4, 1991, for the award of service connection at a 10 percent initial rating for residuals of trauma, right upper extremity, including the right arm and hand. In December 2006, the RO issued a statement of the case which granted an increased initial evaluation of 20 percent, effective October 4, 1991, for the Veteran's cervical spine spondylosis. The statement of the case also granted earlier effective dates of October 18, 2001, for the awards of service connection for right and left frozen shoulders. In a December 2006 rating decision, the RO granted service connection for quadriparesis of the left upper extremity, right lower extremity, and left lower extremity, effective from October 4, 1991; and assigned separate initial disability ratings of 10 percent for each of these conditions. The Veteran subsequently filed a timely notice of disagreement contesting both the initial ratings and effective dates assigned to each of these disabilities. In August 2007, the RO issued a rating decision which granted entitlement to a total disability rating based upon individual unemployability (TDIU), effective from August 26, 2006. In October 2007, the Board issued a decision which, in pertinent part, denied initial evaluations in excess of 20 percent for the Veteran's service-connected cervical spine spondylosis, frozen left shoulder, and frozen right shoulder. The Veteran appealed this portion of the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order remanding these issues for compliance with the Joint Motion. The Board's October 2007 decision also granted an increased initial evaluation of 30 percent for the Veteran's service-connected posttraumatic headaches. Although this issue was initially appealed to the Court by the Veteran, it was dismissed by the Court's May 2009 Order. The Board's October 2007 decision also denied the Veteran's claims for an initial evaluation in excess of 10 percent for residuals of trauma, right upper extremity, including the right arm and hand; for an earlier effective date, prior to October 4, 1991, for the award of service connection for residuals of trauma, right upper extremity, including the right arm and hand; and for an earlier effective date, prior to October 18, 2001, for the awards of service connection for his right and left frozen shoulders, secondary to cervical spine spondylosis. The April 2009 Joint Motion indicated that the Veteran was abandoning these claims, and the appeal of these claims was subsequently dismissed by the Court's May 2009 Order. In addition to the above issues, the Board's October 2007 decision remanded issues of entitlement to increased initial evaluations in excess of 10 percent for residuals of quadriparesis involving the left upper extremity, left lower extremity, and right lower extremity; entitlement to an earlier effective date, prior to October 4, 1991, for the award of service connection for quadriparesis of these extremities; and entitlement to an extension of a temporary total evaluation under 38 C.F.R. § 4.30, beyond August 31, 1992, for convalescence following surgery on the Veteran's service-connected cervical spine disorder. Specifically, the Board directed the RO to issue a statement of the case addressing these issues. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board's remand informed the Veteran that a timely substantive appeal must be filed to vest the Board with jurisdiction over these issues. In July 2009, the RO issued a statement of the case addressing each of these issues. Having not received a timely substantive appeal of these issues, they are not before the Board. See 38 C.F.R. § 20.202 (2012). In February 2010, based on the April 2009 Joint Motion, the Board remanded the issues remaining on appeal, i.e. initial evaluations in excess of 20 percent for the Veteran's service-connected cervical spine spondylosis, frozen left shoulder, and frozen right shoulder, for additional evidentiary development. Thereafter, additional development was requested in a November 2010 Board remand. FINDINGS OF FACT 1. Since service connection became effective in October 1991, the Veteran's cervical degenerative arthritis has been manifested by no more than a moderate limitation of motion, with forward flexion in excess of 15 degrees; tenderness over the neck area; and pain. 2. Since service connection became effective in October 2001, the Veteran's frozen left (minor) shoulder, secondary to cervical degenerative arthritis, was manifested by motion of the left arm, at its worst, to halfway of shoulder level. 3. Prior to November 18, 2003, the Veteran's frozen right (major) shoulder, secondary to cervical degenerative arthritis, was manifested by motion of the right arm to halfway of shoulder level. 4. Beginning on November 18, 2003, the Veteran's frozen right (major) shoulder, secondary to cervical degenerative arthritis, was manifested by motion of the right arm, to shoulder level, with pain. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for cervical degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5290 (2003), Diagnostic Codes 5239, 5242 (2012). 2. The criteria for an initial evaluation in excess of 20 percent for frozen left (minor) shoulder, secondary to cervical degenerative arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 3. Prior to November 18, 2003, the criteria for an initial evaluation of 30 percent, for frozen right (major) shoulder, secondary to cervical degenerative arthritis, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 4. Beginning on November 18, 2003, the criteria for an evaluation in excess of 20 percent, for frozen right (major) shoulder, secondary to cervical degenerative arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claims seeking higher initial evaluations for his cervical spine and bilateral shoulder disabilities arise from his disagreement with the initial evaluations assigned to these conditions following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's available service treatment records, as well as his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Most recently, the RO provided the Veteran with VA examinations of the spine and joints in May 2010. These examinations were performed by a VA physician who had reviewed the Veteran's claims file, reviewed the history of the disabilities with the Veteran, examined the Veteran, and included rationales for the conclusions reached. The Board finds that these examinations are adequate for evaluation purposes. 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). The Veteran has not claimed that either examination was inadequate. Id. Subsequent treatment reports document the ongoing manifestations of these disabilities. The Board remanded this matter in February 2010, and again in November 2010. The Board instructed the RO to obtain the Veteran's updated treatment records, obtain the Veteran's records from the Social Security Administration (SSA), schedule the Veteran for new VA medical examinations, and consider all newly submitted evidence received, but not yet considered by the RO. The RO subsequently obtained the Veteran's updated treatment and SSA records, and scheduled him for VA examinations of the spine and joints in May 2010. Thereafter, it issued an October 2012 supplemental statement of the case addressing all of the evidence of record. Accordingly, the directives of the Board's February 2010 and November 2010 remands have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). A. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Lewinski, 1 Vet. App. 282 (1991). Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In his February 2013 brief, the Veteran's representative stated that, "any increased evaluation for the neck or shoulders beyond 2006 - specifically the date of the grant for individual unemployability - is moot as the Veteran is already being compensated at the 100% level." This statement does not express a clear intent to withdraw the current appeal for increased evaluations since August 26, 2006, the effective date assigned for the Veteran's TDIU rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). i. Cervical Spine Disorder The RO has assigned the Veteran's service-connected cervical degenerative arthritis a 20 percent initial disability rating, effective from October 1991. The Veteran has appealed this decision seeking a higher initial evaluation. During the course of this appeal, the applicable criteria used in rating the Veteran's cervical spine disability was amended under changes to the rating criteria applicable to the diseases and injuries of the spine under 38 C.F.R. § 4.71a, effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. A new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03, 69 Fed. Reg. 25179 (2004). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The RO has addressed the Veteran's claim for increase under both the former and current versions of the rating criteria. Therefore, there is no prejudice to the Veteran for the Board to consider the regulatory provisions effective during the course of this appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). i. Criteria in Effect Prior to September 26, 2003 Diagnostic Code 5290, in effect before September 26, 2003, was used to evaluate limitation of cervical spine motion. Pursuant to Diagnostic Code 5290, slight limitation of motion of the cervical spine warranted a 10 percent disability rating. Moderate limitation of motion of the cervical spine warranted a 20 percent disability rating. A 30 percent disability rating, the highest under this code provision, was warranted for a severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5290 (2003). Ankylosis of the cervical spine was rated under Diagnostic Code 5287, with 30 percent being assigned for an ankylosed cervical spine in a favorable condition, and a 40 percent disability rating being assigned in an unfavorable position. 38 C.F.R. § 4.71a, Diagnostic Codes 5287 (2003). Prior to September 23, 2002, a 20 percent rating is for application when there are moderate, recurring attacks of intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) (effective prior to September 23, 2002). A 40 percent rating was warranted severe intervertebral disc syndrome as evidenced by recurring attacks with intermittent relief. A 60 percent rating was for application when there is pronounced intervertebral disc syndrome evidenced by persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Id. Diagnostic Code 5293, in effect from September 23, 2002 to September 26, 2003, was used to evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over 12 months or by combining separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.25 (2012). Pursuant to Diagnostic Code 5293, a 10 percent evaluation was assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, and a 20 percent evaluation was for assignment for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two week but less than four weeks during the past 12 months. A 40 percent evaluation was assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). For purposes of evaluation, an incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Chronic orthopedic and neurologic manifestations meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1). When evaluating on the basis of chronic manifestations, orthopedic disabilities were evaluated using criteria for the most appropriate orthopedic diagnostic code or codes and neurologic disabilities were evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (2). ii. Criteria in Effect Since September 26, 2003 Effective September 26, 2003, the regulations for rating disabilities of the spine were revised with reclassification of the diagnostic codes. The September 2003 regulation amendments provide a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain whether or not it radiates, stiffness, or aching in the area of the spine affected by residuals of injury or disease as follows: For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire cervical spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 (20 percent); and 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 spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent). 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Codes 5235-5243 (2012). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. Id. at Note (1). Effective September 26, 2003, the diagnostic code for intervertebral disc syndrome was reclassified as Diagnostic Code 5243. A 10 percent evaluation was assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, and a 20 percent evaluation was for assignment for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two week but less than four weeks during the past 12 months. A 40 percent evaluation was assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). For purposes of evaluation, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Applying the relevant evidence to all of the diagnostic criteria potentially applicable, the Board concludes that, at all times since service connection became effective in October 1991, the Veteran's cervical degenerative arthritis has warranted no more than a 20 percent disability rating. During this time, the Veteran's cervical degenerative arthritis has been manifested by no more than moderate limitation of motion; forward flexion in excess of 15 degrees; tenderness over the neck area; and complaints of pain on motion. The report of a VA examination performed in April 1992, found cervical spine flexion to 30 degrees, extension to 10 degrees, lateral flexion to 20 degrees, and rotation to 30 degrees. In April 1992, the Veteran underwent a C3-C4 and C4-C5 anterior cervical diskectomy with fusion, including back bone done graft and AO plate instrumentation. A treatment report, dated in February 1994, noted that the Veteran's cervical spine exhibited a full range of motion. The report also noted complaints of tenderness over the neck area, with no signs of atrophy. A January 1999 MRI of the spine revealed an impression of stable diskectomy and fusion at C3-C4 and C4-C5, with no spinal stenosis at the fused levels, and relatively advanced degenerative changes at C6-C7, with mild cord flattening due to disc bulge and ridging osteophytes and bilateral neuroforaminal narrowing, which had progressed since 1994. The report of a November 2003 VA examination of the spine noted the Veteran's complaints of pain in his lower cervical and upper thoracic spine, which is aggravated by activity or cold weather. Physical examination of the cervical spine revealed a range of motion consisting of extension to 5 degrees with pain, flexion to 25 degrees, with pain; lateral flexion to 20 degrees, with pain; and lateral rotation to 30 degrees, without pain; and to 35 degrees, with pain. The report concluded with a diagnosis of quadriparesis, secondary to cervical spine spondylosis. A January 2004 MRI of the cervical spine revealed an impression of status post anterior fusion from C3 to C5, with anterior cervical plate; normal alignment of cervical spine, with cervical spondylosis; moderate spinal stenosis at C6-C7 produced by disc osteophyte complex projecting into ventral spinal canal, and no cord atrophy, syrinx, or myelomalacia. A VA examination of the spine, performed in July 2006, listed the range of motion in the cervical spine as forward flexion to 25 degrees, extension to 20 degrees, left and right lateral rotation to 60 degrees, and left and right lateral flexion to 30 degrees. The VA examiner noted the Veteran's complaints of pain at the terminal limits of motion. The VA examiner also noted symptoms of tenderness and weakness in the cervical spine. However, strength testing revealed 5-/5 strength in the upper extremities. The report concluded with a diagnosis of cervical spine spondylosis. In August 2007, a VA examination of the spine was conducted. The VA examiner noted that the Veteran's claims file had been reviewed, and the report included a historical summary of the Veteran's cervical spine disability. The examination report noted the Veteran's complaints of daily neck stiffness and pain, largely posterior, which varied from dull to sharp in severity. The report noted that the Veteran's medications included morphine sulfate, gabapentin, and etodolac, and that these medications improve, but do not completely relieve his symptoms. Physical examination revealed that the Veteran exhibited inconsistent and exaggerated pain avoidance behaviors. The spine exhibited a mild decrease in normal cervical lordosis. Examination of the cervical spine revealed diffuse tenderness, with no muscle spasm, and negative Spurling's test. Range of motion testing of the cervical spine revealed flexion to 60 degrees, painful 30 to 60 degrees; extension to 20 degrees, painful from 10 to 20 degrees; and lateral flexion on the left to 30 degrees and on the right to 45 degrees, with pain at the end point. Sensation to light touch was preserved in the C5 to T1 dermatomes. The report noted that motor strength testing was inconsistent. Testing of the triceps, biceps, wrist extensors, wrist flexors, grip strength, and intrinsics revealed 3+/5 strength voluntarily, which increased to 4+/5 strength when instructed only to exhibit breakaway with resistance. The report noted that muscle tone was normal, and that there was no atrophy. The report concluded with diagnoses of status post three-level cervical spine fusion, moderate central and bilateral foraminal stenosis at C6/C7, and chronic pain syndrome. The VA examiner noted that the Veteran exhibited symptom magnification and multiple inconsistencies, and that motor strength and cervical spine range of motion were of questionable usefulness for determination of disability evaluation. The VA examiner noted that electrophysiological testing performed in 2006 did not demonstrate any significant nerve pathology involving the upper or lower extremities. In May 2010, a VA examination of the spine was conducted. The VA examiner noted that the Veteran's claims file had been reviewed, and the examination report included a history of the Veteran's cervical spine disability. The examination report noted the Veteran's complaints of dull and aching neck pain and stiffness, ranging from 2 to 5 out of 10 in severity, along with periodic numbness in the right and left arms. The Veteran indicated that he used morphine and gabapentin for his neck and extremity pain, with modest relief. He denied having any bowel or bladder complaints or flare-ups. The report noted that there was no indication of other constitutional symptoms, such as weight loss, fever, or dizziness. The report noted that the Veteran did not use any assistive devices to walk and did not wear a neck brace. It also indicated that he was able to stand for an hour and walk for several blocks. Physical examination revealed slight loss of cervical lordosis, no paraspinal muscle tenderness, and no periods of incapacitation during the last 12 months due to his cervical spine disability. Range of motion testing of the cervical spine revealed forward flexion to 20 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 40 degrees. The report noted the Veteran's complaint of pain on motion, and that the range of motion remained unchanged after three repetitions. Sensory examination of the upper extremities was normal to touch and proprioception, as was muscle mass of the upper and lower extremities. Deep tendon reflexes were 2/4 at the bilateral triceps, biceps, and wrists. X-ray examination of the cervical spine revealed an anterior cervical fusion from C3 to C5; degenerative disc changes with narrowing at C6-C7; and facets degenerative joint changes. The examination report concluded with a diagnosis of cervical degenerative arthritis. The VA examiner further noted that the function of the cervical spine was limited by pain, but not incoordination or fatigability. The report also noted that the Veteran was able to perform activities of daily living, but that his work as a mechanic was severely limited by his neck degenerative arthritis. Finally, the report noted that there was no change in the functional capability of the cervical spine, with repetitive motion. The Board has considered that the Veteran has complained of pain, but notes that the pain, when considered with the range of motion that is shown in his cervical spine, does not equate to severe limitation of motion as required for a higher rating under Diagnostic Code 5290. The August 2007 VA examination noted that the Veteran exhibited symptom magnification, along with multiple inconsistencies. Muscle mass was described as normal, with no signs of atrophy; and repetitive range of motion testing revealed no loss in range of motion. Finally, under the revised criteria, the General Rating Formula specifically indicates that criteria for the ratings are for application with or without symptoms of pain, stiffness, or aching. See 38 C.F.R. § 4.71a, General Rating Formula. There is nothing in the record to indicate that the Veteran's pain is beyond that contemplated by the criteria, or that function of the cervical spine is additionally limited by incoordination, weakness, or fatigability. Therefore, the Veteran's cervical spine disorder does not warrant a higher rating based on pain. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). The Board has considered whether a higher rating would be warranted for the Veteran's service-connected cervical spine disorder if rated as under the provisions for intervertebral disc syndrome. Under the criteria effective prior to September 23, 2002, intervertebral disc syndrome which was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief, was rated 60 percent. With severe symptoms, with recurrent attacks and intermittent relief, it was rated 40 percent. With moderate symptoms and recurring attacks, it was rated 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). Aligning these criteria with the Veteran's case, it is clear that his disability would warrant no more than a 20 percent rating under Diagnostic Code 5293. Looking to the current criteria, intervertebral disc syndrome, preoperatively or postoperatively, found at Diagnostic Code 5243, may be rated either based on limitation or absence of motion under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. As discussed above, rating the Veteran's service-connected cervical spine disorder under the General Rating Formula based on limitation of motion does not warrant an increase in excess of 20 percent. Nor would applying the current criteria under the Formula for Rating Intervertebral Disc Syndrome. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes require incapacitating episode. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. At no time is the Veteran shown to have been on prescribed bed rest due to his service-connected cervical spine disorder. As such, a rating in excess of 20 percent for his cervical spine disorder is not warranted under the provisions of Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. During the course of this appeal, the Veteran has been awarded service connection and assigned four separate 10 percent disability ratings for quadriparesis in his bilateral upper and lower extremities. As noted above, the April 2009 Joint Motion indicated that the Veteran was abandoning his claim concerning an increased initial evaluation for his residuals of trauma, right upper extremity, including the right arm and hand. The remaining residuals of quadriparesis involving the left upper extremity, left lower extremity, and right lower extremity were addressed in a July 2009 statement of the case, following which the Veteran did not file a timely substantive appeal. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned rating inadequate. The Veteran's service-connected cervical spine disorder was evaluated as a disease or injury of the spine pursuant to 38 C.F.R. § 4.71a, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. Since service connection became effective in October 1991, the Veteran's cervical degenerative arthritis has been manifested by no more than a moderate limitation of motion, with forward flexion in excess of 15 degrees; tenderness over the neck area; and pain. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 20 percent disability rating. Evaluations in excess of 20 percent are provided for certain manifestations of the Veteran's cervical spine disorder, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 20 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of this issue for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003), Diagnostic Codes 5239, 5242 (2012); see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected cervical spine disorder, the evidence shows no distinct periods of time during the appeal period, when manifestations of the Veteran's service-connected cervical spine varied to such an extent that a rating greater or less than 20 percent would be warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 20 percent for his service-connected cervical degenerative arthritis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ii. Bilateral Frozen Shoulders The RO has assigned a 20 percent initial disability rating for the Veteran's service-connected right frozen shoulder and a 20 percent initial disability rating for the left frozen shoulder, secondary to the service-connected cervical spine degenerative arthritis, effective from October 2001. The Veteran is right-handed; thus, his right shoulder is considered his major extremity, and his left shoulder is considered his minor extremity. See 38 C.F.R. § 4.69 (2012). A 20 percent evaluation is assigned for limitation of the major or minor arm motion at shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. When there is limitation of motion midway between the side and shoulder level, a 20 percent rating is again warranted for minor arm limitation of motion, and a 30 percent rating is warranted for major arm limitation of motion. Id. The next highest evaluation for minor arm limitation of motion, the maximum 30 percent rating, is assigned for limitation of motion of the arm to 25 degrees from the side. Id. The next highest evaluation for major arm limitation of motion, the maximum 40 percent rating, is assigned for limitation of motion of the arm to 25 degrees from the side. Id. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I (2012). Forward flexion is the range of motion from the side of the body out in front) and abduction is the range of motion from the side of the body out to the side. 38 C.F.R. § 4.71, Plate I. The standard ranges of motion for shoulder abduction and forward elevation (flexion) are 180 degrees. Id. An October 2001 VA treatment report noted the Veteran's complaints of cervical spine pain. The report noted that the Veteran denied any complaint of weakness in both upper extremities, but that range of movement was limited. Physical examination revealed restriction of movement up to halfway on flexion and abduction of both shoulders. The report concluded with an assessment of chronic cervical pain, secondary to spinal stenosis in the past, status post surgery, and degenerative joint disease. On VA examination for joints in November 2003, forward flexion for the right and left shoulder was to 80 degrees, without pain, and to 90 degrees, with pain on both sides. The report also noted shoulder abduction for the right and left shoulder to 90 degrees, without pain on both sides. The report concluded with a diagnosis of frozen shoulders on both sides, as a result of nonuse due to pain in cervical spine area. A subsequent VA examination for joints performed in July 2006, noted the Veteran's complaints of bilateral shoulder stiffness, limited range of motion, and pain with overhead motions. Physical examination revealed forward flexion in the right and left shoulders to 120 degrees. Abduction in both the right and left shoulders was to 90 degrees. The report concluded with a diagnosis of adhesive capulitis bilateral shoulders. In May 2010, a VA examination for joints was conducted. The VA examiner noted that the Veteran's claims file had been reviewed, and the report included a historical summary of the Veteran's bilateral shoulder disabilities. The report noted the Veteran's current shoulder complaints of stiffness and pain, as well as a periodic pain down the right and left arm, with occasional numbness. The report noted that there was no swelling, instability, or locking of either shoulder and no flare-ups. The report noted that the Veteran regularly took morphine and gabapentin, and achieved a moderate response with his shoulder and neck discomfort, with no side effects. There were no reported dislocations or subluxations of either shoulder. The report noted that the Veteran was able to perform all activities of daily living despite his shoulder discomfort, and was able to drive for short distances. The report noted that his shoulder discomfort did not limit his standing or walking. Range of motion testing of the right shoulder revealed forward flexion from 0 to 90 degrees, with pain from 70 to 90 degrees, which remained unchanged after three repetitions; and range of motion on abduction from 0 to 80 degrees, with pain from 60 to 90 degrees, which remained unchanged after three repetitions. Muscle strength of the deltoid, biceps and triceps on the right side was 3/5 with good coordination of the right fingers and normal right grip. X-ray examination of the right shoulder was normal limits. Range of motion testing of the left shoulder revealed forward flexion from 0 to 90 degrees, with pain from 60 to 90 degrees, which remained unchanged after three repetitions; and range of motion on abduction from 0 to 80 degrees, with pain from 60 to 80 degrees, which remained unchanged after three repetitions. Muscle strength of the biceps, triceps, wrist flexors and extension on the left side was 3/5. X-ray examination of the left shoulder revealed a left scapula within normal limits. The examination report concluded with diagnoses of chronic right and left shoulder strain. The VA examiner noted that the Veteran's shoulder movements on the right and left were restricted by pain, but not by incoordination or excess fatigability. The VA examiner also noted that the Veteran's shoulder motion was limited by pain, and that no flare-ups were reported. a. Frozen Left Shoulder As noted above, the next highest evaluation for minor arm limitation of motion, the maximum 30 percent rating, is assigned for limitation of motion of the arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The evidence of record clearly indicates that the range of motion in the Veteran's left shoulder is pain free far in excess of 25 degrees. Accordingly, an evaluation greater than 20 percent under Diagnostic Code 5201 is not warranted. The Board has considered other diagnostic codes pertaining to the left shoulder and arm. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, the evidence of record does not demonstrate ankylosis of the scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202-03 (2012). The Board has also considered whether there is any additional functional loss not contemplated in the current 20 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45. The report of a November 2003 VA neurology examination indicated that no motor strength weakness or atrophy was found on physical examination. The report of the Veteran's VA examination in July 2006, noted that strength testing revealed 5-/5 in the upper extremities. The July 2006 VA examination noted a range of motion in the left shoulder including forward flexion to 120 degrees and abduction to 90 degrees, with pain at the terminal limits. Finally, the VA examination in May 2010 noted a range of motion in the left shoulder was pain free on forward flexion and abduction to 60 degrees, which is far beyond the limited range of motion that would warrant a rating in excess of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. b. Frozen Right Shoulder An October 2001 treatment report noted restriction of movement of the right shoulder up to halfway of shoulder level on flexion and abduction. Accordingly, a initial rating of 30 percent is warranted for limitation of the major, right arm motion as it was midway between the side and shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. However, the November 18, 2003 VA examination revealed forward flexion to 80 degrees without pain, and abduction to 90 degrees without pain. The July 2006 VA examination for joints revealed forward flexion to 120 degrees and abduction to 90 degrees, with pain at the terminal limits. Accordingly, beginning on November 18, 2003, a rating in excess of 20 percent for the Veteran's service-connected right shoulder disorder is not warranted. Id. The Board has considered other diagnostic codes pertaining to the right shoulder and arm. See Schafrath, 1 Vet. App. at 595. However, the evidence of record does not demonstrate ankylosis of the scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202-03. The Board has also considered whether there is any additional functional loss not contemplated in the initial 20 percent evaluation assigned for the Veteran's right shoulder disorder. See 38 C.F.R. §§ 4.40, 4.45. The October 2001 VA outpatient treatment record indicated that the Veteran denied weakness in his right shoulder. The next highest rating, 40 percent, is warranted for limitation of the major arm motion 25 degrees from the side. Thus, the Board finds that there is no additional functional loss not contemplated in the 30 percent rating assigned herein prior to November 18, 2003. The November 2003 VA neurology examination indicated that there was no motor strength weakness or atrophy found on physical examination; and the Veteran's July 2006 VA examination of the right shoulder noted that strength testing revealed 5-/5 strength in the upper extremities. The May 2010 VA examination found muscle strength of the deltoid, biceps, and triceps on the right side was 3/5, with good coordination of the right fingers and normal right grip. For the period beginning on November 18, 2003, the next highest rating, 30 percent, is warranted for limitation of the major arm motion midway between the side and shoulder level. VA examinations in November 2003 and July 2006 range of motion on repetition well beyond the limited range of motion that would warrant a rating in excess of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Thus, the Board finds that there is no additional functional loss not contemplated in the 20 percent rating currently assigned. c. Other Considerations The Board finds that the Veteran's service-connected bilateral shoulder disability picture is not so unusual or exceptional in nature as to render the assigned ratings inadequate. The Veteran's service-connected bilateral shoulder disorders are evaluated as a disease or injury of the spine pursuant to 38 C.F.R. § 4.71a, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. Since service connection became effective in October 2001, the Veteran's service-connected frozen left (minor) shoulder was manifested by motion of the left arm, at its worst, to halfway of shoulder level. Prior to November 18, 2003, the Veteran's frozen right (major) shoulder was manifested by motion of the right arm to halfway of shoulder level. Beginning on November 18, 2003, the Veteran's frozen right (major) shoulder was manifested by motion of the right arm to shoulder level, with pain. When comparing these disability pictures with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 30 percent disability rating for the Veteran's service-connected right shoulder disorder, prior to November 18, 2003; and a 20 percent disability rating for the Veteran's service-connected left shoulder disorder, and a 20 percent disability rating for the Veteran's service-connected right shoulder disorder beginning on November 18, 2003. Evaluations in excess of these ratings are provided for certain manifestations of a shoulder disorder, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for these ratings reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of these issues for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012); see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral shoulder disorders, the evidence shows no distinct periods of time during the appeal period, other than those periods addressed herein, when the Veteran's service-connected bilateral shoulder disorders varied to such an extent that greater or lesser ratings than those assigned would be warranted. As the preponderance of the evidence is against the Veteran's claims for ratings in excess of those assigned for the Veteran's service-connected right and left shoulder disorders, the benefit of the doubt doctrine is inapplicable, and entitlement to ratings in excess thereof are not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 57. ORDER An initial evaluation in excess of 20 percent for cervical degenerative arthritis is denied. An initial evaluation in excess of 20 percent for frozen left (minor) shoulder, secondary to cervical degenerative arthritis, is denied. An initial evaluation of 30 percent for frozen right (major) shoulder, secondary to cervical degenerative arthritis, prior to November 18, 2003, is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 20 percent for frozen right (major) shoulder, secondary to cervical degenerative arthritis, beginning November 18, 2003, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs