Citation Nr: 1313834	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  07-34 573A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for herniated cervical discs, C4-5. 

2.  Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine, L5-S1.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel





INTRODUCTION

The Veteran served on active duty from August 1991 to December 1995. 

This matter is before the Board of Veterans' Appeals  (Board) on appeal from an June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which continued a 10 percent rating for herniated cervical discs, C4-5, and, a 10 percent rating for degenerative disc disease of the lumbar spine, L5-S1.  The Veteran appealed the assigned ratings. 

In May 2011, the Board remanded the case for further development and it has since returned for further appellate consideration.

A request for a total rating based upon individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the Veteran or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a service-connected disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Id.   

The Board observes that, in November 2009, the Veteran applied for TDIU and that claim was denied by the RO in a March 2010 rating decision.  The Veteran did not appeal the RO rating decision that denied a TDIU, nor did the Veteran's representative raise the issue in the March 2013 written argument in support of the Veteran's increased rating claims here on appeal.  Moreover, the most current evidence does not suggest that the Veteran's cervical and/or lumbar spine disability renders him unemployable.  The matter of a TDIU is not within the Board's jurisdiction.  



FINDINGS OF FACT

1.  The Veteran has herniated discs in his cervical spine primarily productive of pain on motion and forward flexion to no less than 40 degrees. There is no evidence of limitation of forward flexion of the cervical spine to 30 degrees or less; a combined range of motion of the cervical spine of 170 degrees or less; severe muscle spasm or guarding; or incapacitating episodes.  There is no separately ratable neurological impairment of the upper extremities. 

2.  The Veteran has degenerative disc disease of the lumbar spine primarily productive of pain on motion, and forward flexion to no less than 80 degrees.  
There is no evidence of limitation of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; severe muscle spasm or guarding; or incapacitating episodes.  There is no separately ratable neurological impairment of the lower extremities. 


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected cervical spine disability are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5235-5243 (2012).

2.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5235-5243 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
	
Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all elements of a claim, including the disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).

This notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

With regard to the notice requirements pertaining to increased-rating claim, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes (DCs) or potential "daily life" evidence, etc.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

An RO pre-adjudication letter was sent to the Veteran in December 2006 (a September 2006 notice letter was returned as undeliverable) which apprised him of the type of evidence and information needed to substantiate his increased rating claim, and of his and VA's respective responsibilities in obtaining this supporting evidence.  An additional VCAA notice letter was sent to him in June 2011.  Thereafter, the claim was readjudicated by way of a May 2012 SSOC.  He has also been advised him as to how disability ratings and effective dates are assigned.  

VA also has a duty to assist him in fulfilling developing the evidence concerning his claim.  This duty includes assisting him in the procurement of records and, when necessary, providing an examination.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The claims file contains the Veteran's service treatment records, records from the Social Security Administration (SSA), as well as his post-service VA medical evaluation and treatment records.  The Veteran also has had VA compensation examinations reassessing the severity of his spine disabilities.  

Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of the claims being decided herein that has not been obtained.  No further notice or assistance to him with his claims is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Claim for Higher Ratings

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Evaluations of a service-connected disability require review of the entire medical history regarding the disability.  38 C.F.R. §§ 4.1, 4.2.  If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where entitlement to compensation already has been established and increase in the disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has reviewed all of the evidence of record, the more critical evidence ("temporal focus") consists of that generated during the appeal period, which, in actuality, extends from one year prior to the filing of this increased-rating claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  And the Court has held that, in determining the present level of disability over this time span, a "staged" rating is required if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated, assuming these factors are not already contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  This includes when rating spinal disabilities, such as determining whether there is additional limitation of motion on account of these factors.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010).

Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or reasonably by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Although pain may cause functional loss, pain itself does not constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.

Separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence.  Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993).

In this case, the RO has assigned separate 10 percent ratings for the Veteran's service-connected cervical and spine disabilities.  Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: 

1) 10 percent - Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 

2) 20 percent - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 

3) 30 percent - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 

4) 40 percent -- Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 

5) 50 percent -- Unfavorable ankylosis of the entire thoracolumbar spine; and 

6) 100 percent -- Unfavorable ankylosis of the entire spine. 

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 

Note (2): (See also Plate V.) 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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4):  Round each range of motion measurement to the nearest five degrees. 

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. 
Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table). 

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is in order.  Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

In September 2006, the Veteran underwent a VA compensation examination to reassess his cervical and lumbar spine disabilities.  His ambulation was noted as normal; he was not using any assistive devices.  Extension and forward flexion of the cervical spine was from zero to 45 degrees; lateral flexion and bilateral rotation were to 30 degrees, bilaterally.  He had mild tender trigger point tenderness at C5-6 level posteriorly.  No spasms were seen.  Range of motion of the upper extremities was normal.  There was normal muscle tone, strength, and bulk.  With repeated active range of motion, he had no flare-ups of pain.  Daily neck pain affected his daily living activities.  He was working four days of week and taking one day of sick leave a week because of spine pain.  

Examination of the lumbar spine revealed normal symmetry.  No spasms were noted.  The Veteran had tender trigger points at the L4-5, S1 vertebral areas.  There was no sciatic or paravertebral muscle tenderness.  Forward flexion of the lumbar spine was from zero to 80 degrees; extension was from zero to 30 degrees; lateral flexion and rotation was from zero to 30 degrees, bilaterally.  With repeated active range of motion, he complained of pain at 30 degrees of extension, mostly until 80 degrees of forward flexion.  It was noted that the Veteran remained independent with regard to his daily living activities but had daily low back pain and decreased endurance.  There was no incapacitation, doctor or self-imposed, in the last 12 months.  

Neurologically, he had no bowel or bladder problems and no history of such.  Deep tendon reflexes were in the normal range.  Motor strength and sensory testing was normal throughout.  Monofilament vibration, cold pack application were tested.  There was no muscle atrophy.  He had normal coordination.  Straight leg raise test and Lasegue's test were negative.  He had normal dorsiflexor strength in both great toes.  Diagnosis was C4-5 level herniated disc with mild spinal stenosis and L5-S1 level degenerative disc disease seen as a disc bulge.

According to an August 2007 VA note,  a neurologist determined that the Veteran's myofascial tendon headaches are at least as likely as not cause by or aggravated by his sports injury concussion but also indicated that the reported headaches were aggravated by the herniated cervical discs at C4-5.  Service connection is currently in effect for myofascial tendon headaches.  See September 2007 rating decision.

A January 2008 statement from the Veteran's private chiropractor indicates that he consistently presented with neck pain, bilateral hand pain and occasional numbness, as well as poor cervical range of motion with pain.  Point tenderness, dyskinesis, muscle spasms and edema were present at C-3 through C-7 and into T1 and 2.  He had consistent weakness and pain.  He limited his daily activities to work and only essential activities.  The Veteran experienced relief for two to three days and then seeks additional treatment due to his returning symptoms.  The chiropractor stated that due to the documented disc bulges in the cervical spine, he could only offer the Veteran temporary relief.  The chiropractor stated that disc degeneration left the Veteran with instability in his spine which does not hold an adjustment for an extended time.  Also, the chiropractor stated that most activity tends to exacerbate this problem.  The chiropractor's felt that the Veteran needs long-term chiropractic care, short of any medical intervention which can correct his degenerating spine.  The Veteran's headaches were noted and the chiropractor stated that headaches are sometimes found to be caused when spinal vertebrae have begun a degenerative process as they have with the Veteran.  

Outpatient treatment notes dated from 2009 indicate that the Veteran receives chiropractic care through VA for his cervical and lumbar spine disabilities.  

Pursuant to the Board's remand, the Veteran had an additional VA examination in June 2011 to reassess his cervical and lumbar spine disabilities.  Inspection of the cervical spine revealed normal symmetry.  He had no halting or favoring movements.  He had tenderness to palpation over his C5-C7 vertebrae.  Some paraspinous muscle soreness was present, but no spasms.  Range of cervical spine motion was as follows: forward flexion was from zero to 40 degrees; extension was from zero to 45 degrees; lateral flexion was from zero to 45 degrees; and rotation movements were from zero to 75 degrees, bilaterally.  There were no muscle spasms with range of motion.  After repetitive-use testing, he complained of pain at the endpoint of forward flexion.  The examiner stated that the Veteran's major functional impact is chronic neck pain with decreased endurance and stamina with repetitive active range of motion; there was no functional loss.  There were no incapacitating episodes in the last year.  He remained independent in terms of daily living activities.  He retired secondary to chronic medical problems.  He is not currently employed.  

He had normal symmetry of the lumbar spine.  There was a tender trigger point in the lower lumbar spine at L4-5-S1.  There were no paraspinous muscle spasms.  No pain in the SI joint or coccyx was present.  Range of lumbar spine motion was as follows:  forward flexion was from zero to 80 degrees; extension was from zero to 30 degrees; lateral flexion and rotational movements were from zero to 30 degrees bilaterally.  With repetitive, active range of motion, he complained of a flare-up of pain with forward flexion at 80 degrees, and also had a mild complaint of pain with lateral flexion to his right at 30 degrees which caused left low back pain.  The Veteran remained independent in terms of daily living.  He had not had any incapacitating episodes of lumbar spine disease.  The examiner characterized the severity of the Veteran's lumbar spine disability as mild to moderate.  

Neurologically, the Veteran had normal range of motion in upper and lower extremities.  Sensory examination was normal.  There was no muscle atrophy or decrease in strength.  He had no bowel or bladder problems.  Deep tendon reflexes in the upper and lower extremities were normal.  Straight leg raise test was negative, and a Lasegue's sign was not elicited.  

Diagnoses were C4-5 level herniated disc without spinal stenosis, and degenerative disc bulge at L5-S1 level.  There was no evidence of peripheral neuropathy or radiculopathy in the upper or lower extremities.  The examiner noted that past nerve conduction study was normal in both upper and lower extremities.  

After having reviewed the complete record, the Board finds that a disability rating in excess of 10 percent is not warranted for the cervical spine disability under the general rating formula.  Specifically, there is no evidence of 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, severe muscle spasm or guarding.  

Instead, the record reflects that forward flexion of the cervical spine has been no less than 40 degrees, which was seen on the most recent VA compensation examination in 2011.  There is evidence of some muscle spasms in the neck, as noted by a VA chiropractor in August 2011 and April 2012, as well as by the Veteran's private chiropractor.  Nonetheless, there is no indication that those spasms were severe enough to result in an abnormal gait or spinal contour.   Examination of the Veteran's gait on spinal examinations has been regarded as normal, and no abnormality of the spinal contour have been identified.  The Board notes further that muscle spasms in the cervical spine were not seen during the September 2006 and June 2011 VA examinations.  

The Board also finds that a disability rating in excess of 10 percent is not warranted for the Veteran's lumbar spine disability.  In this regard, there is no evidence of limitation of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or severe muscle spasm or guarding to warrant a higher rating under the general rating formula.

Instead, the medical evidence reveals forward flexion of the lumbar spine to no less than 80 degrees.  As with the cervical spine, there was evidence of a spasm in the lumbar spine during VA chiropractic visits in August 2011 and April 2012, but again, there is no evidence that it resulted in any abnormal gait or abnormal spinal contour.  (An August 2011 VA treatment note shows that the Veteran had abnormal gait due to a right foot and ankle injury, but not due to his service-connected spine disabilities).  

In March 2013 written argument, the Veteran's representative essentially argued that the Veteran's pain in his cervical and lumbar spine causes functional loss warranting additional compensation.  Indeed, credible medical and lay evidence of record documents that the Veteran has chronic neck pain with decreased endurance and stamina upon repetitive use testing, as well as pain on lumbar spine motion.  Notwithstanding, there is no evidence of any additional functional loss in the cervical or lumbar spine after repetitive motion.  See, for example, September 2006 and June 2011 VA examination reports.  Overall, any functional loss present in the cervical and lumbar spine is adequately accounted for in the separate 10 percent rating assigned.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. 

The Board also considered whether a higher rating is warranted based on incapacitating episodes under Diagnostic Code 5243.  Although the Veteran is diagnosed with degenerative disc disease of the cervical and lumbar spine, there is no evidence of any incapacitating episodes of such condition having a total duration of at least two weeks but less than four weeks per year.  In fact, the VA and private medical evidence does not show that the Veteran has had any incapacitating episodes of spine disease.  Thus, the criteria for a rating in excess of 10 percent are not met under Diagnostic Code 5243for either the cervical or lumbar spine disability. 

The Board also considered whether a separate rating is warranted for any related neurologic impairment of the upper and/or lower extremities.  However, the medical evidence does not show that the Veteran experiences any such impairment.   Sensory, motor, and reflex examination of the extremities was regarded as normal during both VA examinations.  As such, a separate rating for neurologic impairment of the upper or lower extremities is not in order.

The Veteran is competent to report his observable cervical and lumbar spine symptoms, such as pain and functional impairment.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the nature and severity of his disabilities of the spine.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Thus, although the Veteran's reports of symptoms have been considered, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). 

Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for herniated disc of the cervical spine, and a rating in excess of 10 percent for degenerative disc disease of the lumbar spine.  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating:  (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, though, the schedular rating criteria contemplate the extent and severity of the Veteran's cervical and lumbar spine disabilities, which are primarily productive of pain on motion and limitation of motion, manifestations which are contemplated in the applicable rating criteria.   

Referral to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) for extra-schedular consideration is not therefore appropriate.  Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

Entitlement to a rating in excess of 10 percent for herniated cervical discs, C4-5, is denied. 

Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine, L5-S1, is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs