Citation Nr: 1314436 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-31 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus as due to exposure to radiation, Lewisite, mustard gas, Agent Orange, and/or other chemicals. 2. Entitlement to an increased disability rating for service-connected residuals of gunshot wound to the right leg (right leg GSW), rated as 10 percent disabling. 3. Entitlement to an increased disability rating for service-connected traumatic arthritis of the cervical spine (neck disability), rated as 30 percent disabling. 4. Entitlement to an increased disability rating for service-connected right upper extremity radiculopathy, rated as 10 percent disabling. 5. Entitlement to an increased disability rating for service-connected hemorrhoids, rated as 0 percent disabling. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The veteran had active military service from February 1969 to February 1971, and from January 1973 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to the benefits sought. The veteran subsequently perfected this appeal. The Board notes that the Veteran's claims file was received from the RO in Muskogee, Oklahoma. Claims related to mustard gas or Lewisite exposure filed after January 19, 2005, must be dealt with by the Muskogee, RO. Original jurisdiction of the Veteran's claim remains with the Columbia RO. The Veteran requested a Board personal hearing in October 2008. Because the Veteran failed to appear at the hearing, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2012); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of service connection for diabetes mellitus, as due to exposure to radiation, Lewisite, mustard gas, Agent Orange, and/or other chemicals, an increased rating for hemorrhoids, and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire increased rating period, the Veteran had superficial and deep scars on his right leg that did not cause limitation of motion, and did not cover an area of at least 12 square inches. Muscle strength in the anterior tibialis and gastrocnemius muscles is normal without loss of function. 2. For the entire increased rating period, the Veteran's service-connected cervical spine disability has not manifested unfavorable ankylosis of the entire cervical spine. 3. For the entire increased rating period, the Veteran's service-connected right upper extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the affected nerve. CONCLUSIONS OF LAW 1. For the entire increased rating period, the criteria for an increased disability rating in excess of 10 percent for service-connected right leg GSW have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Codes 5311, 5312 (2012), 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, and 7805 (prior to Oct. 23, 2008). 2. For the entire increased rating period, the criteria for an increased disability rating in excess of 30 percent for cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5242 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for a disability rating of 20 percent for service-connected right upper extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. See Mitchell. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Increased Rating for Service-Connected Residuals of Right Leg GSW The present appeal involves the Veteran's contention that the severity of his service-connected residuals of right leg GSW warrant a higher disability rating. Essentially, the Veteran contends that the evaluation he has received for that condition does not accurately reflect its severity. During the course of the Veteran's appeal, VA revised the rating criteria for evaluating scars, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008). However, the amendments are only effective for claims filed on or after October 23, 2008, unless a claimant requests consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As such, the criteria in effect at the time the Veteran's claim was received are applicable. The Veteran's right leg scars are currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7804; scars on the right leg are to be rated as scars (DCs 7801, 7802, 7803, and 7804), or as impairment of function (DC 7805). DC 7801 directs that scars other than on the head, face, or neck that are deep or cause limited motion are evaluated as 10 percent disabling for areas exceeding 6 square inches, 20 percent disabling for areas exceeding 12 square inches, 30 percent disabling for areas exceeding 72 square inches, and 40 percent disabling for areas exceeding 144 square inches. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. Part 4. DC 7802 provides that scars other than head, face, or neck scars that are superficial and do not cause limited motion will be rated as 10 percent disabling for areas of 144 square inches or greater. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4. DC 7803 notes that unstable superficial scars are evaluated as 10 percent disabling. Note (1) following indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2006). The next criteria, that of Diagnostic Code 7804, provides that superficial scars that are painful on examination are rated as 10 percent disabling. Note (1) following states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) states that in this case, a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation (See 38 C.F.R. § 4.68 of this part on the amputation rule). Finally, DC 7805 directs that other scars shall be rated on the limitation of function of the affected part. 38 C.F.R. Part 4. The evidence shows that, for the entire period of increased rating appeal, the Veteran had superficial and deep scars on his back, that did not cause limitation of motion, and did not cover an area of at least 12 square inches. In a December 2006 VA general medical examination, the Veteran reported pain in the area of the scars. The Veteran also reported limited standing, walking, and sitting. On physical examination, the VA examiner reported that both scars on the Veteran's right leg appeared healed and there was no sign of inflammation; however, the VA examiner did report tenderness in the area of the old wound. In a December 2008 VA scars examination, the Veteran reported pain in and around the scar area. The VA examiner reported a 10mm * 10mm scar on the entrance-mid lower leg laterally; there was tenderness on palpation and underlying soft tissue damage, but no adherence to underlying tissue, limitation of motion or loss of function, or skin ulceration or breakdown over the scar. The VA examiner also reported a 4mm * 9mm scar on the mid posterior lower leg; there was no tenderness on palpation, adherence to underlying tissue, underlying tissue damage, or skin ulceration or breakdown over the scar. In this case, the evidence shows two scars, painful on examination, on the Veteran's right leg. A 10 percent rating is the maximum rating under DC 7804 for superficial scars that are painful on examination. 38 C.F.R. § 4.118. The Board then turns to other possibly applicable diagnostic codes relating to the Veteran's scars. The Veteran's scars are on his back and not on the head, face, or neck, so DC 7800 is not applicable. To receive an increased disability rating in excess of 10 percent for scars on the right leg, under Diagnostic Code 7801, the scars must be deep or cause limitation of motion and cover an area of at least 12 square inches or greater. In this case, the scars seen on the right leg cover areas of 4mm * 9mm and 10mm * 10mm, which is less than 12 square inches, so a higher rating is not possible under DC 7801. An increased rating in excess of 10 percent is not warranted in this case under DC 7802 because 10 percent is the maximum schedular rating provided under DC 7802 for superficial scars that do not cause limitation of motion. The Veteran's scars have not been shown by the evidence to be unstable, that is a scar that for any reason, where there is frequent loss of covering of skin over the scar, so DC 7803 is not applicable. The Board also finds that the scars themselves do not cause any other disabling effects to warrant a separate rating, as indicated under DC 7805. As such, the Veteran is not entitled to an initial disability rating in excess of 10 percent for scars on the right leg for any period of increased rating claim. 38 C.F.R. § 4.118. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath. In this case, the RO has rated residuals of right leg GSW as scars under DCs 7801-7805. As set forth in the criteria below, disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, and severe. 38 C.F.R. § 4.56(d) (2012). "Slight" muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1) (2012). "Moderate" muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2) (2012). "Moderately severe" muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3) (2012). "Severe" muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. If present, the following are also signs of 'severe' muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4) (2012). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). When evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, consider granting a higher rating in cases in which a veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca, 8 Vet. App. at 204-07. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Diagnostic Codes 5311 and 5312 provide evaluations for disabilities of Muscle Groups XI and XII. The function of these muscles is movement. See 38 C.F.R. § 4.73, DCs 5311 and 5312 (2012). For DCs 5311 and 5312, a slight injury warrants a 0 percent rating, a moderate injury warrants a 10 percent rating, a moderately severe injury warrants a 30 percent rating, and a severe injury warrants a 40 percent rating. Id. In December 2008, the Veteran underwent a VA muscle examination. The VA examiner reported a missile wound to the gastrocnemius muscle. The wound was not a through and through injury, was not infected before healing, and there was no associated bone, nerve, vascular, or tendon injuries. The VA examiner reported 5 of 5 strength of the gastrocnemius and soleus muscles (Groups XI and XII). The VA examiner further reported no muscle herniation, no loss of deep fascia or muscle substance, and no limitation of motion of any joint due to muscle disease or injury. In order to warrant a compensable evaluation, there would need to be evidence of a moderate injury for either Muscle Group XI or XII. A through and through injury with muscle damage is evaluated as no less than a moderate injury. Although examinations have revealed an entrance and an exit scar, the medical evidence does not establish that the veteran sustained a through and through injury. Service medical records indicate that the bullet entered the anterior portion of the mid leg and remained posteriorly below the popliteal nerve. Although not clear from the record, it appears that the bullet was surgically removed at some point or eventually exited. Even assuming a through and through injury, there is no evidence of muscle damage in either muscle group. VA orthopedic and muscle examinations have not noted any loss of function and on recent examination in December 2008, muscle strength in the anterior tibial and gastrocnemius muscles was normal. On review of the record, the Board finds that there was no clinically ascertainable disability associated with any muscle damage or the veteran's service-connected right leg scars. The veteran sustained a gunshot wound in service without infection. He was hospitalized for only a brief period and returned to duty with apparently good functional results. Objectively, he has minimal scarring but no evidence of fascial defect, atrophy or impaired tonus. Range of motion of the joints is normal and various examinations indicate no loss of function. As such, the Veteran is not entitled to a separate compensable rating for muscle injuries of the right leg for any period of increased rating claim. 38 C.F.R. § 4.73. Increased Rating for Neck Disability The Veteran is in receipt of a 30 percent rating for service-connected neck disability for the entire increased rating period, under the provisions of 38 C.F.R. § 4.71a, DC 5010-5242. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include degenerative arthritis of the spine (DC 5242). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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. A 20 percent rating is provided 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. A 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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) provides 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 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. 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) provides that, 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) instructs to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a. The DCs 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 DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (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 Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS 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 for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. DC 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that 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 (DC 5200, etc.). 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 such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. After a review of all the evidence, lay and medical, the Board finds that, for the entire increased rating period, the Veteran's service-connected neck disability has not been manifested by unfavorable ankylosis of the entire cervical spine. In a February 2006 VA treatment record, the Veteran reported neck pain that radiated down his right arm. A March 2006 VA treatment record reflected neck with full range of motion; the diagnosis was minimal cervical spine degenerative changes without stenosis. In the December 2006 VA general medical examination, the Veteran reported constant neck pain of 6/10 which became 9/10 with activities requiring motion of his head. The Veteran also reported that the pain radiated from his neck to his right upper extremity. On physical examination, there was tenderness on palpation with some spasm present to the right aspect of the neck. A range of motion summary in December 2006 indicated that the Veteran's forward flexion was 0 to 15 degrees. Extension was 0 to 10 degrees. Right lateral flexion was 0 to 20 degrees. Left lateral flexion was 0 to 30 degrees. Right rotation was 0 to 30 degrees. Left rotation was 0 to 35 degrees. On repetitive use, the VA examiner opined that there was 5 degrees of motion lost in all ranges. There was also no noted additional limitation on motion with repetitive use due to weakness, impaired endurance, or incoordination. An October 2007 VA treatment record reflected decreased head turning to left and right with pain. In a November 2008 VA treatment record, the VA examiner reported right paraspinous tenderness in the C6-T1 region. In an August 2009 VA spine examination, the Veteran reported constant sharp pain in the neck that radiated down the right upper extremity. The Veteran also reported no problems with activities of daily living and that he sometimes wore a cervical collar. The VA examiner reported no incapacitating episodes in the past 12 months. The diagnosis was chronic pain of the cervical spine with right cervical radiculitis. A range of motion summary in August 2009 indicated that the Veteran's forward flexion was 0 to 25 degrees. Extension was to 0 degrees. Right lateral flexion was 0 to 28 degrees. Left lateral flexion was 0 to 35 degrees. Right rotation was 0 to 37 degrees. Left rotation was 0 to 35 degrees. In an October 2009 VA spine examination, the Veteran reported that he used capsaicin and traction every morning to treat the cervical spine disability. The Veteran reported constant moderate pain. The VA examiner reported 5 incapacitating episodes related to cervical spine disability for the past 12 months that would last for 2 weeks on average. The VA examiner also reported severe flare-ups every 3 months where there was 75% functional impairment. A range of motion summary in October 2009 indicated that the Veteran's forward flexion was 0 to 30 degrees. Extension was 0 to 25 degrees. Right lateral flexion was 0 to 20 degrees. Left lateral flexion was 0 to 30 degrees. Right rotation was 0 to 30 degrees. Left rotation was 0 to 50 degrees. On repetitive use, the VA examiner opined that there was no additional limitation of motion due to pain. There was also no noted additional limitation on motion with repetitive use due to weakness, impaired endurance, or incoordination. The VA examiner reported no cervical spine ankylosis and no thoracolumbar spine ankylosis. Based upon these findings, the Board finds that, even with the consideration of additional limiting factors indicated in DeLuca and 38 C.F.R. §§ 4.40, 4.45, the assignment of a rating in excess of 30 percent for neck disability is not warranted for any period of increased rating appeal, as the requirement of unfavorable ankylosis of the cervical spine has not been met at any time during the increased rating period. 38 C.F.R. § 4.71a, DC 5242. The Board notes that in the August 2009 VA spine examination, extension was limited to 0 degrees; however, as noted above, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. In reaching this conclusion, the Board has considered whether a higher disability rating is warranted based on additional functional loss or limitation of motion of the cervical spine due to pain or weakness, fatigability, incoordination, or pain on movement. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. Here, the Board notes the Veteran's generally reported impairment of function in occupational settings, such as problems with lifting and carrying, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. For example, the October 2009 VA spine examination report reflects specific findings of no additional limitation of flexion with repetitive use, with no noted additional limitation on motion with repetitive use due to painful motion, weakness, impaired endurance, incoordination, or instability, or fatigue. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of limitations due to pain. Note (1) to DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evidence shows that the Veteran has had incapacitating episodes; however, there is no evidence that the incapacitating episodes required bed rest prescribed by a physician and treated by a physician, so there cannot be a higher rating granted under DC 5243 for IVDS. For these reasons, the Board finds that the weight of the evidence is against a finding of an increased rating in excess of 30 percent for neck disability for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Increased Rating for Right Upper Extremity Radiculopathy The Veteran contends that he has pain, muscle cramping, and right upper extremity numbness and tingling due to his right upper extremity radiculopathy. The Veteran's right upper extremity radiculopathy is currently rated under DC 8515, relating to paralysis of the median nerve. See 38 C.F.R. § 4.124a (2012). DC 8515, with regard to the median nerve of the minor appendage, provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 40 percent disabling. Complete paralysis of the median nerve warrants a 60 percent evaluation with the hand inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a (2012). The rating schedule does not define the terms "mild," "moderate," "severe," or "marked," as used in this diagnostic code to describe the degree of deformity of the foot. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Board notes that the term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. After a review of all the evidence in this Veteran's case, the Board finds that the Veteran's service-connected right upper extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the affected nerve. A May 2005 VA treatment record reflected sensory system was intact. A March 2006 VA treatment record reflected no clubbing, cyanosis, or edema of the extremities and right should had decreased abduction of 120 degrees. A June 2006 VA treatment record reflected no clubbing, cyanosis, or edema of the extremities. The VA examiner also reported bilateral radial pulses and dorsalis pedis of 2/4 bilaterally. A July 2006 private physical evaluation reflected no edema, clubbing of digits, cyanosis, or gross deformities. The private examiner also reported pulses were full and equal. In the December 2006 VA general medical examination, the Veteran reported pain radiating from the neck to the right upper extremity and numbness in the right upper extremity. The VA examiner reported sensory was decreased pinprick sensation was present in the right upper extremity extending down to the fingers. A July 2007 VA treatment record reflected no clubbing, cyanosis, or edema of the extremities and pedal pulses 2+. An October 2007 VA treatment record reflected no clubbing, cyanosis, or edema of the extremities and pedal pulses 2+. The VA examiner also reported the Veteran was able to lift his right shoulder to near full range of motion with pain. A June 2008 VA treatment record reflected good range of motion of all major joints, no ulnar deviation, no rotator cuff weakness or tenderness, no acrocyanosis or clubbing, and peripheral motor function was intact. In a June 2008 VA rehabilitation therapy note, the Veteran reported throbbing pain down to his right elbow. The Veteran also reported the area from his right elbow to his right hand was numb, his thumb and second and third digits throbbed, and that his fourth and fifth digits had been "dead for years." The VA examiner reported shoulder flexion and extension were both around 80 degrees and that elbow and wrist flexion/extension were within normal limits. A November 2008 VA treatment record reflected bilateral shoulder palpation without pain and decreased range of motion bilaterally. At an August 2009 VA spine examination, the Veteran reported pain that radiated from his neck down his right upper extremity. The examiner reported shrugging of the right shoulder was 1+, extension of the right elbow was 2+, and flexion of the right elbow was 2+. The VA examiner also reported diminished sensation in the distribution of the C6, C5, and C4 dermatomes on the right. The VA examiner further reported that deep tendon reflexes could not be elicited on the right upper extremity. In the October 2009 VA spine detailed motor examination (normal is 5/5), the VA examiner reported 5/5 right elbow flexion, 5/5 right elbow extension, 5/5 right wrist flexion, 5/5 right wrist extension, 3/5 right finger flexors, 3/5 right finger abduction, and 3/5 right thumb opposition. On detailed sensory examination (normal is 2/2), the VA examiner reported right upper extremity vibration 2/2, right upper extremity pinprick 1/2, right upper extremity light touch 2/2, and right upper extremity position sense 2/2. On detailed reflex examination (normal is 2+), right biceps was 2+ and right triceps was 2+. In light of the Veteran's subjective complaints of constant pain and numbness and the objective evidence of diminished reflexes and decreased sensation, the Board finds that the evidence is in relative equipoise regarding whether the criteria for the 20 percent rating under DC 8515 are met for the entire increased rating period. In this respect, the evidence shows that the upper right extremity radiculopathy results in disability that is more than mild. Not only is there decreased sensation, but the disability is also shown to cause pain and numbing. 38 C.F.R. § 4.124a, DC 8515. The Board notes that no higher rating is warranted for the Veteran's right upper extremity radiculopathy under any other diagnostic code. The Board notes that DC 8514, relating to paralysis of the radial nerve, and DC 8516, relating to paralysis of the ulnar nerve, both only provide a 20 percent rating for moderate symptomatology. DCs 8511 and 8512, relating to paralysis of the middle and lower radicular groups, respectively, both contemplate symptoms involving limitation of motion of the wrist; however, the evidence of record reflects no limitation of motion of the right wrist. The Board further notes that the maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. There is no indication of any type of muscular atrophy or loss of movement or impaired range of motion. In this case, the Board finds that the evidence reflects that the Veteran's right upper extremity radiculopathy manifests in no worse than moderate incomplete paralysis. Resolving all reasonable doubt in the Veterans favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for the 20 percent rating for right upper extremity radiculopathy under DC 8515 for the entire increased rating period. 38 C.F.R. § 4.124a. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for the Veteran's service-connected neck disability, right upper extremity radiculopathy, and residuals of right leg GSW. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected neck disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The service-connected neck disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca), and incapacitating episodes. The service-connected right upper extremity radiculopathy rating criteria reasonably describe the Veteran's disability level and symptomatology. They account for his pain, numbness, and weakness. The service-connected residuals of right leg GSW rating criteria reasonably describe the Veteran's disability level and symptomatology. They account for his pain, tenderness, and physical disfigurement. In addition, the criteria provide for higher ratings if certain symptoms are present. Here, those symptoms are not present. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's service-connected neck disability, right upper extremity radiculopathy, and residuals of right leg GSW, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issues decided herein. The RO sent the Veteran a letter in February 2006 that informed him of the requirements needed to establish an increased evaluation for neck disability, right upper extremity radiculopathy, and residuals of right leg GSW. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran. The Veteran has been afforded adequate examinations on the issue of increased ratings for service-connected neck disability, right upper extremity radiculopathy, and residuals of right leg GSW. VA provided the Veteran with examinations in December 2006, August 2009, and October 2009. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted. Conclusions reached and diagnoses given were consistent with the examination report. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issues of increased rating for service-connected neck disability, right upper extremity radiculopathy, and residuals of right leg GSW. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An increased disability rating in excess of 10 percent for service-connected residuals of right leg GSW is denied. An increased disability rating in excess of 30 percent for service-connected neck disability is denied. An increased disability rating for service-connected right upper extremity radiculopathy of 20 percent is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND On review of all the evidence, lay and medical, as it bears on the relevant increased rating period, the Board finds that a remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal for an increased compensable disability rating for hemorrhoids. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran's most recent VA examination of hemorrhoids took place in December 2006, over six years ago. For this reason, VA will provide the Veteran a more contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected hemorrhoids. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281 (1993); VAOPGCPREC 11-95. With regard to the Veteran's claim for service connection for diabetes mellitus, the Veteran has asserted that his diagnosed diabetes mellitus was caused by exposure to radiation and/or chemicals while stationed at Fort McClellan in Anniston, Alabama. The Veteran's personnel records reflect that he was stationed at Fort McClellan from February 3, 1970 to July 31, 1970 and from January 4, 1973 to April 26, 1974. The Board notes that Fort McClellan was home to the U.S. Army Chemical Center and School and the U.S. Army Combat Developments Command Chemical Biological-Radiological Agency during the time that the Veteran was stationed there, raising the possibility of exposure to radiation and/or harmful chemicals. The Veteran's military occupation specialty (MOS) was Chemical Operations Specialist. As previously indicated, in the case of the claim for residuals of chemical exposure, the VA M21-1MR, Manual of Adjudication Procedures, provides specific instructions and criteria for the development of claims related to mustard gas or Lewisite exposure. In light of this, full development in accordance with M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, was required. The Board acknowledges that the Veterans Benefits Administration (VBA) sought to obtain confirmation from the Department of Defense that the Veteran was not exposed to mustard gas or Lewisite, and that the November 2009 response by the Department of Defense indicated that no such exposure could be confirmed. However, the Board finds that the Veteran's claim be developed so as to determine whether the Veteran was exposed to any additional chemicals and/or harmful substances during his military service at Fort McClellan; no such development has been undertaken by VBA. This remains an active issue, as there have also been legislative proposals for VA to establish a health registry of individuals exposed to chemicals and/or harmful substances at Fort McClellan, and it is possible the Department of Defense has information relevant to this claim. Therefore, the Board finds that additional development is necessary to adequately address the Veteran's service connection claim. See 38 U.S.C.A. § 5103A(b), (c) (VA must make a "reasonable effort" to obtain all relevant records, including records pertaining the claimant's service). Finally, the resolution of the Veteran's claims being remanded might be determinative of his claim for a TDIU. See 38 C.F.R. § 4.16(a). Under these circumstances, the Board finds that the issues are inextricably intertwined, and a decision at this time by the Board with respect to the TDIU claim would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the issues of service connection for diabetes mellitus, as due to exposure to radiation, Lewisite, mustard gas, Agent Orange, and/or other chemicals, an increased rating for hemorrhoids, and entitlement to TDIU are REMANDED for the following actions: 1. Development for confirmation of exposure to the following chemicals and/or harmful substances should be conducted with the Department of the Army, Department of Defense, and/or any other appropriate agency: Agent Orange Asbestos Atropine Chloracetophenone (CN) O-chlorobenzylidenemalononitrile (CS) Depleted Uranium Lead paint Polychlorinated biphenyls (PCB's) Radiation Sarin gas Sulfur Trichloroethylene (TCE) VX (IUPAC name O-ethyl S-[2-(diisopropylamino)ethyl] methylphosphonothioate) VS (IUPAC name O-methyl S-[2-(diisopropylamino)ethyl] methylphosphonothioate) Bacillus Globigii Bacillus Subtilis Aspergillus Fumigatus 2. IF there is evidence that the Veteran was exposed to any of the above-listed substances, VBA should arrange for a medical professional with appropriate expertise to review the relevant documents in the Veteran's VA claims folder and provide an opinion, with supporting rationale, as to the relationship, if any, between the Veteran's diagnosed diabetes mellitus and the Veteran's military service, with specific consideration of exposure to any radiation, Agent Orange, and/or other chemicals in service. If the reviewer believes that physical examination and/or diagnostic testing of the Veteran is necessary, such should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. A rationale should be given for all opinions and conclusions expressed. If an opinion or assessment cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. Schedule the Veteran for a VA examination to determine the severity of his service-connected hemorrhoids. The VA examiner should be provided with the relevant documents in the Veteran's claims file. Any opinion provided should be supported by a full rationale. All signs and symptoms of the service-connected hemorrhoids should be reported in detail. The examiner should also describe the impact of the Veteran's hemorrhoids on his occupational and social functioning. A rationale should be given for all opinions and conclusions expressed. If an opinion or assessment cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 4. Thereafter, the RO/AMC should readjudicate the Veteran's claims for service connection for diabetes mellitus, as due to exposure to radiation, Lewisite, mustard gas, Agent Orange, and/or other chemicals, an increased rating for hemorrhoids, and entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs